Close

Form 20-F Capital Product Partners For: Dec 31

April 27, 2021 2:15 PM EDT

Exhibit 2.1

 

DESCRIPTION OF SECURITIES

 

REGISTERED UNDER SECTION 12 OF THE EXCHANGE ACT

 

As of December 31, 2020 Capital Product Partners L.P. (the “Partnership,” “CPLP,” “we,” “us” or “our”) had the following series of securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading symbols Name of each exchange on which  
registered  
Common units representing limited partnership   CPLP   Nasdaq Global Select Market  
interests        
           

 

Capitalized terms used but not defined herein have the meanings given to them in our annual report on Form 20-F for the fiscal year ended December 31, 2020 (the “Annual report”).

 

COMMON UNITS

 

The following is a description of the material terms of CPLP’s common units representing limited partner interests. Because it is a summary, the following description is not complete and is subject to and qualified in its entirety by reference to CPLP’s limited partnership agreement, as amended (the “Partnership Agreement”) and applicable Marshall Islands law in effect on the date hereof. References to provisions of the Partnership Agreement are qualified in their entirety by reference to the full Partnership Agreement, included as Exhibit I to our Report on Form 6-K, filed with the SEC on February 24, 2010, as Exhibit I to our Report on Form 6-K dated September 30, 2011, as Exhibit II to our Report on Form 6-K/A dated May 23, 2012, as Exhibit II to our Report on Form 6-K dated March 21, 2013 and as Exhibit A to Exhibit I to our Report on Form 6-K dated August 26, 2014.

 

General

 

As at December 31, 2020, 18,623,100 common units were issued and outstanding. The common units are in registered form.

 

Transfer Agent and Registrar

 

Duties

 

Computershare serves as registrar and transfer agent for the common units. We pay all fees charged by the transfer agent for transfers of common units, except the following, which must be paid by common unitholders:

 

surety bond premiums to replace lost or stolen certificates, taxes and other governmental charges;

 

special charges for services requested by a holder of a common unit; and

 

other similar fees or charges.

 

There is no charge to unitholders for disbursements of our cash distributions. We will indemnify the transfer agent, its agents and each of their stockholders, directors, officers and employees against all claims and losses that may arise out of acts performed or omitted for its activities in that capacity, except for any liability due to any gross negligence or intentional misconduct of the indemnified person or entity.

 

Resignation or Removal

 

The transfer agent may resign, by notice to us, or be removed by us. The resignation or removal of the transfer agent will become effective upon our appointment of a successor transfer agent and registrar and its acceptance of the appointment. If a successor has not been appointed or has not accepted its appointment within 30 days after notice of the resignation or removal, our general partner may, at the direction of our board of directors, act as the transfer agent and registrar until a successor is appointed.

 

THE PARTNERSHIP AGREEMENT

 

The following is a summary of the material provisions of our Partnership Agreement.

 

Organization and Duration

 

We were organized on January 16, 2007 and have perpetual existence.

 

Purpose

 

Our purpose under the Partnership Agreement is to engage directly in, or enter into or form any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that may lawfully be conducted by a limited partnership pursuant to the MILPA.

 

Our General Partner has delegated to our board of directors the authority to oversee and direct our operations, management and policies on an exclusive basis. Our General Partner, subject to the direction and supervision of our board of directors, manages our business and affairs and carry out our purpose.

Power of Attorney

 

Each limited partner, and each person who acquires a unit from another unitholder grants to our General Partner and, if appointed, a liquidator, a power of attorney to, among other things, execute and file documents required for our qualification, continuance or dissolution. The power of attorney also grants our General Partner the authority to make consents and waivers under the Partnership Agreement.

 

Capital Contributions

 

Unitholders are not obligated to make additional capital contributions, except as described below under “—Limited Liability.”

 

Voting Rights

 

Each outstanding common unit is entitled to one vote on matters subject to a vote of common unitholders.

 

To preserve our ability to be exempt from U.S. federal income tax under Section 883 of the Code, if at any time, any person or group, other than our General Partner or its affiliates, owns beneficially 5% or more of any class of units then outstanding, any units owned by that person or group in excess of 4.9% may not be voted on any matter and will not be considered to be outstanding when sending notices of a meeting of unitholders to vote on any matter (unless otherwise required by law), or calculating required votes, except for purposes of nominating a person for election to our board, or determining the presence of a quorum or for other similar purposes under our Partnership Agreement. The voting rights of any such unitholders in excess of 4.9% will be redistributed pro rata among the other unitholders holding less than 4.9% of the voting power of the same class of units entitled to vote. Our Partnership Agreement provides certain exceptions to such limitation, including when a person acquired securities directly from our General Partner or its affiliates or with the approval of our board of directors, but only for so long as such exception would not jeopardize our tax exemption under Section 883 of the Code.

 

We will hold a meeting of the limited partners entitled to vote every year to elect one or more members of our board of directors and to vote on any other matters that are properly brought before the meeting. The sole member of our General Partner, has the right to appoint three of the eight members of our board of directors with the remaining five directors being elected by our common unitholders. Currently, our board comprises seven members.

 

In voting their units, our General Partner and its affiliates will have no fiduciary duty or obligation whatsoever to us or limited partners, including any duty to act in good faith or in the best interests of us and the limited partners.

 

The matters described in the table below require the unitholder vote specified below. Matters requiring the approval of a “unit majority” require the approval of a majority of the common units. You should note that our General Partner has approval rights in respect of certain of the matters described below.

 

Action   Unitholder Approval Required and Voting Rights
Issuance of additional units No approval rights (although our General Partner has approval rights in certain instances).
Amendment of the Partnership Agreement Certain amendments may be made by our board of directors without the approval of the unitholders if those amendments are also approved by our General Partner. Other amendments generally require the approval of a unit majority and can only be proposed by or with the written consent of our General Partner and our board of directors. Please read “—Amendment of the Partnership Agreement.”

Amendment of the operating agreement of the operating company (as defined in our Partnership Agreement)

Unit majority if such amendment would adversely affect our limited partners in any material respect.

Merger of our partnership or the sale of all or substantially all of our assets

Unit majority if such amendment would adversely affect our limited partners in any material respect and approval of our General Partner and board of directors. Please read “—Merger, Sale, or Other Disposition of Assets.”

Dissolution of our partnership

Unit majority and approval of our General Partner and our board of directors. Please read “— Termination and Dissolution.”

Reconstitution of our partnership upon dissolution Unit majority. Please read “—Termination and Dissolution.”

Election of five of the eight members of our board A plurality of the votes of the holders of the common units.

 

of directors

Withdrawal of the General Partner

Our General Partner may withdraw without obtaining unitholder approval upon 90 days’ written notice to our board of directors. Please read “—Withdrawal or Removal of our General Partner.”

Removal of the General Partner

Not less than 66 2/3% of the outstanding units, including units held by our General Partner and its affiliates, voting together as a single class and a majority vote of our board of directors. Please read “—Withdrawal or Removal of our General Partner.”

Transfer of the general partner interest in us

Our General Partner may transfer all or any part of its General Partner interest in us to another person without the approval of the holders of our outstanding units. Please read “—Transfer of General Partner Interest.”

Transfer of incentive distribution rights

The incentive distribution rights are freely transferable. Please read “—Transfer of Incentive Distribution Rights.”

Transfer of ownership interests in the General

Partner

No approval required at any time. Please read “—Transfer of Ownership Interests in General Partner.”

 

 

 

 

Limited Liability

 

Assuming that a limited partner does not participate in the control of our business within the meaning of the MILPA and that such limited partner otherwise acts in conformity with the provisions of our Partnership Agreement, that partner’s liability under the MILPA will be limited, subject to possible exceptions, to the amount of capital he or she is obligated to contribute to us for his or her units plus his or her share of any undistributed profits and assets. If a court determined, however, that limited partners “participated in the control” of our business for the purposes of the MILPA, then such limited partners could be held personally liable for our obligations under the laws of Marshall Islands, to the same extent as our General Partner, to persons who transact business with us who reasonably believe, based on the limited partner’s conduct, that the limited partner is a general partner. Neither our Partnership Agreement nor the MILPA specifically provides for legal recourse against our General Partner if a limited partner were to lose limited liability through any fault of our General Partner. While this does not mean that a limited partner could not seek legal recourse, we know of no precedent for this type of a claim in Marshall Islands case law.

 

Under the MILPA, a limited partnership may not make a distribution to a partner if, after the distribution, all liabilities of the limited partnership, other than liabilities to partners on account of their partnership interests and liabilities for which the recourse of creditors is limited to specific property of the partnership, exceeds the fair value of the assets of the limited partnership, except that the fair value of property that is subject to a liability for which the recourse of creditors is limited shall be included in the assets of the limited partnership only to the extent that the fair value of that property exceeds that liability. The MILPA provides that a limited partner who receives a distribution and knew at the time of the distribution that the distribution was in violation of the MILPA shall be liable to the limited partnership for the amount of the distribution for three years after the date of such distribution. Under the MILPA, a purchaser of units who becomes a limited partner of a limited partnership is liable for the obligations of the transferor to make contributions to the partnership, except that the transferee is not obligated for liabilities unknown to him at the time he became a limited partner and that could not be ascertained from the partnership agreement.

 

Maintenance of our limited liability may require compliance with legal requirements in the jurisdictions in which we conduct business, which may include qualifying to do business in those jurisdictions.

 

Issuance of Additional Securities

 

The Partnership Agreement authorizes us to issue an unlimited amount of additional partnership securities and rights to buy partnership securities for the consideration and on the terms and conditions determined by our board of directors without the approval of the unitholders. Our General Partner will have the right to approve issuances of additional securities that are not reasonably expected to be accretive to equity within 12 months of issuance or which would otherwise have a material adverse impact on our General Partner or its interest in us.

 

We intend to fund acquisitions through borrowings and the issuance of additional common units or other equity securities and the assumption and/or the issuance of debt, subject to market conditions, as further described elsewhere herein. Holders of any additional common units we issue will be entitled to share equally with the then-existing holders of common units in our distributions of available cash. In addition, the issuance of additional common units or other equity securities interests may dilute the value of the interests of the then-existing holders of common units in our net assets. In accordance with Marshall Islands law and the provisions of our Partnership Agreement, we may also issue additional partnership securities interests that, as determined by our board of directors, have special voting rights to which the common units are not entitled.

 

Upon issuance of additional partnership securities, our General Partner will have the right, but not the obligation, to make additional capital contributions to the extent necessary to maintain its General Partner interest in us, which is currently 1.84%. Our General Partner’s interest in us will thus be reduced if we issue additional partnership securities in the future and our General Partner does not elect to maintain its then-applicable General Partner interest in us. Our General Partner will have the right, which it may from time to time assign in whole or in part to any of its affiliates, to purchase common units or other equity securities whenever, and on the same terms that, we issue those securities to persons other than our General Partner and its affiliates, to the extent necessary to maintain its and its affiliates’ percentage interest, including its interest represented by common units, that existed immediately prior to each issuance. Other holders of common units will not have similar preemptive rights to acquire additional common units or other partnership securities.

 

Tax Status

 

The Partnership Agreement provides that the partnership will elect to be taxed as a corporation for U.S. federal income tax purposes.

 

Amendment of the Partnership Agreement

 

General

 

Amendments to our Partnership Agreement may be proposed only by or with the consent of our General Partner and our board of directors. However, neither our General Partner nor our board of directors will have a duty or obligation to propose any amendment and may decline to do so free of any fiduciary duty or obligation whatsoever to us or the limited partners, including any duty to act in good faith or in the best interests of us or the limited partners. In order to adopt a proposed amendment, other than the amendments discussed below, approval of both our board of directors and our General Partner is required, as well as approval of the holders of the number of units required to approve the amendment. Except as we describe below, an amendment must be approved by a unit majority.

 

Prohibited Amendments

 

Except as set forth below, no amendment may:

 

(1)          increase the obligations of any limited partner without its consent, unless such increase is deemed to occur as a result of an amendment approved in accordance with sub-paragraph (2) below;

(2)          have a material adverse effect on the rights or preferences of any class of partnership interests in relation to other classes of partnership interests unless approved by the holders of not less than a majority of the outstanding units of the class affected, voting together as a single class;

 

(3)          increase the obligations of, restrict in any way any action by or rights of, or reduce in any way the amounts distributable, reimbursable or otherwise payable by us to our General Partner or any of its affiliates without the consent of the General Partner, which may be given or withheld at its option;

 

(4) change the term of our partnership;

 

(5)          provide that our partnership is not dissolved upon an election to dissolve our partnership by our General Partner and our board of directors that is approved by the holders of a unit majority; or

 

(6)         give any person the right to dissolve our partnership other than the right of our General Partner and our board of directors to dissolve our partnership with the approval of the holders of a unit majority.

 

The provision of our Partnership Agreement preventing the amendments having the effects described in clauses (1) through (6) above can only be amended upon the approval of the holders of at least 90% of the outstanding units voting together as a single class (including units owned by our General Partner and its affiliates).

 

No Unitholder Approval

 

Our board of directors may generally make amendments to our Partnership Agreement without the approval of any limited partner to reflect:

 

(1) a change in our name, the location of our principal place of business, our registered agent or our registered office;

 

(2) the admission, substitution, withdrawal or removal of partners in accordance with our Partnership Agreement;

 

(3)          a change that our board of directors determines to be necessary or appropriate for us to qualify or to continue our qualification as a limited partnership or a partnership in which the limited partners have limited liability under the laws of any jurisdiction;

 

(4)          an amendment that is necessary, upon the advice of our counsel, to prevent us or our directors or our General Partner or its directors, officers, agents, or trustees from in any manner being subjected to the provisions of the U.S. Investment Company Act of 1940, the U.S. Investment Advisers Act of 1940, or “plan asset” regulations adopted under the U.S. Employee Retirement Income Security Act of 1974, or ERISA, whether or not substantially similar to plan asset regulations currently applied or proposed;

 

(5)          an amendment that our board of directors and, if required by the terms of the Partnership Agreement, our General Partner determines to be necessary or appropriate for the authorization of additional partnership securities or rights to acquire partnership securities;

 

(6) any amendment expressly permitted in the Partnership Agreement to be made by our board of directors acting alone;

 

(7)         an amendment effected, necessitated, or contemplated by a merger agreement that has been approved under the terms of the Partnership Agreement;

 

(8)         any amendment that our board of directors determines to be necessary or appropriate for the formation by us of, or our investment in, any corporation, partnership or other entity, as otherwise permitted by the Partnership Agreement;

 

(9) a change in our fiscal year or taxable year and related changes;

 

(10) certain mergers or conveyances as set forth in our Partnership Agreement; or

 

(11) any other amendments substantially similar to any of the matters described in (1) through (10) above.

 

All amendments reflecting matters described in (1) through (11) above require the approval of our General Partner.

 

In addition, our board of directors may make amendments to the Partnership Agreement without the approval of any limited partner if our board of directors determines that those amendments:

 

(1) do not adversely affect the limited partners (or any particular class of limited partners) in any material respect;

 

(2)         are necessary or appropriate to satisfy any requirements, conditions, or guidelines contained in any opinion, directive, order, ruling or regulation of any Marshall Islands or other authority or contained in any statute;

 

(3)          are necessary or appropriate to facilitate the trading of limited partner interests or to comply with any rule, regulation, guideline or requirement of any securities exchange on which the limited partner interests are or will be listed for trading;

 

(5)          are necessary or appropriate for any action taken by our board of directors relating to splits or combinations of units under the provisions of the Partnership Agreement; or are required to effect the intent expressed in the IPO registration statement or any future prospectus or the intent of the provisions of the Partnership Agreement or are otherwise contemplated by the Partnership Agreement.

 

All amendments reflecting matters described in (1) through (5) above require the approval of our General Partner.

 

Opinion of Counsel and Unitholder Approval

 

Neither our General Partner nor our board of directors will be required to obtain an opinion of counsel that an amendment will not result in a loss of limited liability to the limited partners if one of the amendments described above under “—No Unitholder Approval” should occur. No other amendments to our Partnership Agreement will become effective without the approval of holders of at least 90% of the outstanding units voting as a single class unless we obtain an opinion of counsel to the effect that the amendment will not affect the limited liability of any of our limited partners under applicable law.

 

In addition to the above restrictions, any amendment that would have a material adverse effect on the rights or privileges of any type or class of outstanding units in relation to other classes of units will require the approval of at least a majority of the type or class of units so affected. Any amendment that reduces the voting percentage required to take any action must be approved by the affirmative vote of limited partners whose aggregate outstanding units constitute not less than the voting requirement sought to be reduced.

 

Action Relating to the Operating Subsidiaries

 

We effectively control our operating subsidiaries by being their sole member or shareholder, as applicable.

 

Merger, Sale, or Other Disposition of Assets

 

A merger or consolidation of us requires the approval of our board of directors and the prior consent of our General Partner. However, our General Partner will have no duty or obligation to consent to any merger or consolidation and may decline to do so free of any fiduciary duty or obligation whatsoever to us or the limited partners, including any duty to act in good faith or in the best interests of us or the limited partners. In addition, our Partnership Agreement generally prohibits our board of directors, without the prior approval of our General Partner and the holders of units representing a unit majority, from causing us to, among other things, sell, exchange, or otherwise dispose of all or substantially all of our assets in a single transaction or a series of related transactions, including by way of merger, consolidation, or other combination, or approving on our behalf the sale, exchange, or other disposition of all or substantially all of the assets of our subsidiaries. Our board of directors may, however, cause us to mortgage, pledge, hypothecate, or grant a security interest in all or substantially all of our assets without the prior approval of the holders of units representing a unit majority, although it is required to obtain the prior approval of our General Partner if any such mortgage, pledge or hypothecation is done for purposes other than securing indebtedness that does not result in our over-leverage, taking into account customary industry leverage levels, our structure and our other assets and liabilities. Our General Partner and our board of directors may also cause us to sell all or substantially all of our assets under a foreclosure or other realization upon those encumbrances without the approval of the holders of units representing a unit majority.

 

If conditions specified in our Partnership Agreement are satisfied, our board of directors, with the consent of our General Partner, may convert us or any of our subsidiaries into a new limited liability entity or merge us or any of our subsidiaries into, or convey some or all of our assets to, a newly formed entity if the sole purpose of that merger or conveyance is to effect a mere change in our legal form into another limited liability entity. The unitholders are not entitled to dissenters’ rights of appraisal under our Partnership Agreement or applicable law in the event of a conversion, merger or consolidation, a sale of substantially all of our assets, or any other transaction or event.

 

Additionally, our board of directors is permitted, with the prior consent of our General Partner, to merge or consolidate the Partnership with or into another entity in certain circumstances, provided that each unit outstanding immediately prior to the effective date of the merger is to be an identical unit after the effective date of the merger and the number of units issued by the Partnership in such merger does not exceed 20% of units outstanding immediately prior to the effective date of such merger.

 

Termination and Dissolution

 

We will continue as a limited partnership until terminated or converted under our Partnership Agreement. We will dissolve upon:

 

(1)          the election by our General Partner and our board of directors to dissolve us, if approved by the holders of units representing a unit majority;

 

(2) the sale, exchange, or other disposition of all or substantially all of our assets and properties and our subsidiaries;

 

(3) the entry of a decree of judicial dissolution of us;

 

(4)          the withdrawal or removal of our General Partner or any other event that results in its ceasing to be our general partner other than by reason of a transfer of its general partner interest in accordance with the Partnership Agreement or withdrawal or removal following approval and admission of a successor; or

 

(5) such time when there are no limited partners, unless we are continued without dissolution in accordance with the MILPA.

 

Upon a dissolution under clause (4), the holders of a unit majority may also elect, within specific time limitations, to continue our business on the same terms and conditions described in the Partnership Agreement by appointing as general partner an entity approved by the holders of units representing a unit majority, subject to our receipt of an opinion of counsel to the effect that the action would not result in the loss of limited liability of any limited partner.

 

Liquidation and Distribution of Proceeds

 

Upon our dissolution, unless we are continued as a new limited partnership, the liquidator authorized to wind up our affairs will, acting with all of the powers of our General Partner that are necessary or appropriate, liquidate our assets and apply the proceeds of the liquidation as provided in “How We Make Cash Distributions—Distributions of Cash Upon Liquidation.” The liquidator may defer liquidation or distribution of our assets for a reasonable period or distribute assets to partners in kind if it determines that a sale would be impractical or would cause undue loss to our partners.

 

Withdrawal or Removal of our General Partner

 

Our General Partner may withdraw as general partner without first obtaining approval of any unitholder or our board of directors by giving 90 days’ written notice. If that happens, such withdrawal will not constitute a violation of our Partnership Agreement. Please read “—Transfer of General Partner Interests” and “—Transfer of Incentive Distribution Rights.”

 

Upon withdrawal of our General Partner under any circumstances, other than as a result of a transfer by our General Partner of all or a part of its general partner interest in us, the holders of a majority of the outstanding common units may select a successor to that withdrawing General Partner. If a successor is not elected, or is elected but an opinion of counsel regarding limited liability cannot be obtained, we will be dissolved, wound up and liquidated, unless within a specified period of time after that withdrawal, the holders of a unit majority agree in writing to continue our business and to appoint a successor general partner. Please read “—Termination and Dissolution.”

 

Our General Partner may not be removed unless that removal is approved by the vote of the holders of not less than 66 2/3% of the outstanding units, including units held by our General Partner and its affiliates, voting together as a single class and a majority vote of our board of directors, and we receive an opinion of counsel regarding limited liability. The ownership of more than 33 1/3% of the outstanding units by our General Partner and its affiliates or controlling our board of directors would provide the practical ability to prevent our General Partner’s removal. Any removal of our General Partner is also subject to the successor general partner being approved by the vote of the holders of a majority of the outstanding common units and general partner units, voting as a single class.

 

Our Partnership Agreement also provides that if our General Partner is removed as our general partner under circumstances where cause (as defined in our Partnership Agreement) does not exist and units held by our General Partner and its affiliates are not voted in favor of that removal, our General Partner will have the right to convert its general partner interest and its incentive distribution rights into common units or to receive cash in exchange for those interests based on the fair market value of the interests at the time.

 

In the event of removal of our General Partner under circumstances where cause exists or withdrawal of our General Partner where that withdrawal violates the Partnership Agreement, a successor general partner will have the option to purchase the general partner interest and incentive distribution rights of the departing General Partner for a cash payment equal to the fair market value of those interests. Under all other circumstances where our General Partner withdraws or is removed by the limited partners, the departing general partner will have the option to require the successor general partner to purchase the general partner interest of the departing general partner and its incentive distribution rights for their fair market value. In each case, this fair market value will be determined by agreement between the departing general partner and the successor general partner. If no agreement is reached, an independent investment banking firm or other independent expert selected by the departing general partner and the successor general partner will determine the fair market value. If the departing general partner and the successor general partner cannot agree upon an expert, then an expert chosen by agreement of the experts selected by each of them will determine the fair market value.

 

If the option described above is not exercised by either the departing general partner or the successor general partner, the departing general partner’s general partner interest and its incentive distribution rights will automatically convert into common units equal to the fair market value of those interests as determined by an investment banking firm or other independent expert selected in the manner described in the preceding paragraph.

 

In addition, we will be required to reimburse the departing general partner for all amounts due to the departing general partner, including, without limitation, any employee-related liabilities, including severance liabilities, incurred for the termination of any employees employed by the departing general partner or its affiliates for our benefit.

 

Transfer of General Partner Interest

 

Our General Partner may transfer all or any part of its General Partner interest in us to another person without the approval of the holders of our outstanding units. As a condition of this transfer, the transferee must, among other things, assume the rights and duties of the general partner, agree to be bound by the provisions of the Partnership Agreement and furnish an opinion of counsel regarding limited liability.

 

Our General Partner and its affiliates may at any time transfer units to one or more persons, without unitholder approval.

 

Transfer of Ownership Interests in General Partner

 

At any time, the members of our General Partner may sell or transfer all or part of their respective membership interests in our General Partner to an affiliate or a third party without the approval of our unitholders. However, this may trigger a “Change of Control”, as defined in our Partnership Agreement.

 

Transfer of Incentive Distribution Rights

 

The incentive distribution rights are freely transferable.

 

Change of Management Provisions

 

The Partnership Agreement contains specific provisions that are intended to discourage a person or group from attempting to remove Capital GP L.L.C. as our General Partner or otherwise change management. If any person or group other than our General Partner and its affiliates acquires beneficial ownership of 5% or more of any class of units then outstanding, that person or group loses voting rights on all of its units in excess of 4.9% of all units (subject to certain exceptions).

 

The Partnership Agreement also provides that if our General Partner is removed under circumstances where cause does not exist and units held by our General Partner and its affiliates are not voted in favor of that removal, our General Partner will have the right to convert its general partner interest and its incentive distribution rights into common units or to receive cash in exchange for those interests.

 

Limited Call Right

 

If at any time our General Partner and its affiliates hold more than 90% of the then-issued and outstanding limited partnership interests of any class, our General Partner will have the right, which it may assign in whole or in part to any of its affiliates or to us, to acquire all, but not less than all, of the remaining limited partnership interests of the class held by unaffiliated persons as of a record date to be selected by the General Partner, on at least ten but not more than 60 days’ notice at the greater of (x) the average of the daily closing prices of the limited partnership interests of such class over the 20 trading days preceding the date three days before the notice of exercise of the call right is first mailed and (y) the highest price paid by our General Partner or any of its affiliates for limited partnership interests of such class during the 90-day period preceding the date such notice is first mailed. Our General Partner is not obligated to obtain a fairness opinion regarding the value of the limited partnership interests to be repurchased by it upon the exercise of this limited call right.

 

As a result of the General Partner’s right to purchase outstanding limited partnership interests, a holder of limited partnership interests may have the holder’s limited partnership interests purchased at an undesirable time or price. The tax consequences to a unitholder of the exercise of this call right are the same as a sale by that unitholder of units in the market. Please read “Item 10. Additional Information—E. Taxation—Material U.S. Federal Income Tax Considerations—U.S. Federal Income Taxation of U.S. Holders—Sale, Exchange or Other Disposition of Common Units” and “Item 10. Additional Information—E. Taxation—Material U.S. Federal Income Tax Considerations—U.S. Federal Income Taxation of Non-U.S. Holders—Disposition of Common Units” in the Annual Report.

 

Board of Directors

 

Under our Partnership Agreement, our General Partner delegates to our board of directors the authority to oversee and direct our operations, policies and management on an exclusive basis, and such delegation will be binding on any successor General Partner of the partnership. Our board of directors shall consist of eight persons, three of whom are appointed by our General Partner in its sole discretion and five of whom are elected by the common unitholders. Three of the five elected directors (a) shall not be security holders, officers or employees of our General Partner, directors, officers or employees of any affiliate of our General Partner or holders of any interest in the partnership group (other than our common units) and (b) shall meet the required independence standards.

 

Our board of directors nominates individuals to stand for election as elected board members on a staggered basis at an annual meeting of our limited partners. In addition, any limited partner or group of limited partners that beneficially owns 10% or more of the outstanding common units is entitled to nominate one or more individuals to stand for election as elected board members at the annual meeting by providing written notice to our board of directors not more than 120 days nor less than 90 days prior to the meeting. However, if the date of the annual meeting is not publicly announced by us at least 100 days prior to the date of the meeting, the notice must be delivered to our board of directors not later than ten days following the public announcement of the meeting date. The notice must set forth:

 

the name and address of the limited partner or limited partners making the nomination or nominations;

 

the number of common units beneficially owned by the limited partner or limited partners;

 

             the information regarding the nominee(s) proposed by the limited partner or limited partners as required to be included in a proxy statement relating to the solicitation of proxies for the election of directors filed pursuant to the proxy rules of the SEC;

 

the written consent of the nominee(s) to serve as a member of our board of directors if so elected; and

 

a certification that the nominee(s) qualify as “elected directors” within the meaning of the Partnership Agreement.

 

Our General Partner may remove an appointed board member with or without cause at any time. “Cause” generally means a court’s final, non-appealable judgment finding a person liable for actual fraud or willful misconduct in his or her capacity as a director. Any elected board member may be removed at any time for cause by the affirmative vote of a majority of the other elected board members. Any elected board member may be removed for cause at a properly called meeting of the limited partners by a majority of the outstanding units that are entitled to vote in an election of elected directors. Any appointed board member may be removed for cause at a properly called meeting of the limited partners by a majority of the outstanding units. If any appointed board member is removed, resigns or is otherwise unable to serve as a board member, our General Partner may fill the vacancy. If any board member elected by the common unitholders is removed, resigns or is otherwise unable to serve as a board member, the vacancy may be filled by a majority of the other elected board members then serving.

 

Meetings; Voting

 

Except as described below regarding a person or group owning 5% or more of any class of units then outstanding, unitholders who are record holders of units on the record date will be entitled to notice of, and to vote at, meetings of our limited partners and to act upon matters for which approvals may be solicited.

 

We will hold a meeting of the limited partners every year to elect one or more members of our board of directors and to vote on any other matters that are properly brought before the meeting. Any action that is required or permitted to be taken by the unitholders may be taken either at a meeting of the unitholders or, if authorized by our board of directors, without a meeting if consents in writing describing the action so taken are signed by holders of the number of units necessary to authorize or take that action at a meeting at which all limited partners were present and voted. Special meetings of the unitholders may be called by our General Partner, our board of directors or by unitholders owning at least 20% of the outstanding units of the class for which a meeting is proposed. Unitholders may vote either in person or by proxy at meetings. The holders of a majority of the outstanding units of the class or classes for which a meeting has been called, represented in person or by proxy, will constitute a quorum unless any action by the unitholders requires approval by holders of a greater percentage of the units, in which case the quorum will be the greater percentage; provided, however, that if any meeting has been adjourned for a second time due to absence of a quorum, the act of the limited partners holding at least 25% of all outstanding units and which are represented in person or by proxy at such meeting shall be deemed to constitute the act of all limited partners, unless a greater or different percentage is required with respect to such action under the provisions of our Partnership Agreement.

 

Each record holder of a common unit may vote according to the holder’s percentage interest in us, subject to special voting rights attaching to certain limited partner interests having special voting rights. Please read “—Issuance of Additional Securities.” Units held in nominee or street name account will be voted by the broker or other nominee in accordance with the instruction of the beneficial owner unless the arrangement between the beneficial owner and his nominee provides otherwise.

 

To preserve our ability to be exempt from U.S. federal income tax under Section 883 of the Code, if at any time, any person or group, other than our General Partner and its affiliates, owns beneficially 5% or more of any class of units then outstanding, any units owned by that person or group in excess of 4.9% may not be voted on any matter and will not be considered to be outstanding when sending notices of a meeting of unitholders to vote on any matter (unless otherwise required by law), calculating required votes, except for purposes of nominating a person for election to our board, determining the presence of a quorum or for other similar purposes under our Partnership Agreement. The voting rights of any such unitholders in excess of 4.9% will be redistributed pro rata among the other unitholders holding less than 4.9% of the voting power of the same class of units entitled to vote. Our Partnership Agreement provides certain exceptions to such limitation, including when a person acquired securities directly from our General Partner or its affiliates or with the approval of our board of directors, but only for so long as such exception would not jeopardize our tax exemption under Section 883 of the Code.

 

Any notice, demand, request report, or proxy material required or permitted to be given or made to record holders of units under the Partnership Agreement will be delivered to the record holder by us or by the transfer agent.

 

Status as Limited Partner or Assignee

 

Except as described above under “—Limited Liability,” the common units will be fully paid, and unitholders will not be required to make additional contributions. By transfer of common units in accordance with our Partnership Agreement, each transferee of common units shall be admitted as a limited partner with respect to the common units transferred when such transfer and admission is reflected in our books and records.

 

Indemnification

 

Under the Partnership Agreement, in most circumstances, we will indemnify the following persons, to the fullest extent permitted by law, from and against all losses, claims, damages or similar events arising as a result of such person’s service to the Partnership:

 

(1) our General Partner;

 

(2) any departing general partner;

 

(3) any person who is or was an affiliate of our general partner or any departing general partner;

 

(4) any person who is or was an officer, director, member, partner fiduciary or trustee of any entity described in (1), (2) or (3) above;

 

(5)      any person who is or was serving as a director, officer, member, partner, fiduciary or trustee of another person at the request of our General Partner or any departing general partner;

 

(6) any person designated by our board of directors; and

 

(7) the members of our board of directors.

 

Any indemnification under these provisions will only be out of our assets. Unless it otherwise agrees, our General Partner will not be personally liable for, or have any obligation to contribute or lend funds or assets to us to enable us to effectuate, indemnification. We may purchase insurance against any liabilities that may be asserted against, and any expenses that may be incurred by, persons for our activities or such person’s activities on our behalf, regardless of whether we would have the power to indemnify the person against liabilities under the Partnership Agreement.

 

Reimbursement of Expenses

 

Our Partnership Agreement requires us to reimburse our General Partner for all direct and indirect expenses it incurs or payments it makes on our behalf and all other expenses allocable to us or otherwise incurred by our General Partner in connection with operating our business. These expenses include salary, bonus, incentive compensation and other amounts paid to persons who perform services for us or on our behalf, and expenses allocated to our General Partner by its affiliates. Our General Partner and the members of our board of directors are entitled to determine in good faith the expenses that are allocable to us. Members of our board of directors are entitled to be reimbursed for out-of-pocket costs and expenses incurred in the course of their services to us.

 

Books and Reports

 

Our General Partner is required to keep appropriate books of our business at our principal offices. The books will be maintained for financial reporting purposes on an accrual basis in accordance with U.S. GAAP. For tax and fiscal reporting purposes, our fiscal year is the calendar year.

We will furnish or make available to record holders of units, within 120 days after the close of each fiscal year, an annual report containing audited financial statements, including a balance sheet and statement of operations, our equity and cash flows, and a report on those financial statements by our independent chartered accountants. Except for our fourth quarter, we will also furnish or make available summary financial information within 90 days after the close of each quarter.

 

Right to Inspect Our Books and Records

 

The Partnership Agreement provides that a limited partner can, for a purpose reasonably related to his or her interest as a limited partner, upon reasonable demand and at the limited partner’s own expense, have furnished to the limited partner:

 

a current list of the name and last known addresses of each partner;

 

             information as to the amount of cash, and a description and statement of the agreed value of any other capital contribution or services contributed or to be contributed by each partner and the date on which each became a partner;

 

            copies of the Partnership Agreement, the certificate of limited partnership of the partnership, related amendments and powers of attorney under which they have been executed;

 

information regarding the status of our business and financial position; and

any other information regarding our affairs as is just and reasonable.

 

Our board of directors may, and intends to, keep confidential from the limited partners trade secrets or other information the disclosure of which our board of directors believes in good faith is not in our best interests or that we are required by law or by agreements with third parties to keep confidential.

 

Registration Rights

 

Under our Partnership Agreement, we have agreed to register for resale under the Securities Act of 1933, as amended and applicable state securities laws any common units or other partnership securities proposed to be sold by our General Partner or any of its affiliates or their assignees if an exemption from the registration requirements is not otherwise available or advisable. These registration rights generally continue for two years following any withdrawal or removal of Capital GP L.L.C. as our general partner and for so long thereafter as is required for our General Partner or its affiliates and assignees to sell all of the partnership securities with respect to which it has requested during such two-year period, inclusion in a registration statement otherwise filed or that a registration statement be filed. We are obligated to pay all expenses incidental to the registration, excluding underwriting discounts and commissions.

 

Transfer of Common Units

 

By transfer of common units in accordance with our Partnership Agreement, each transferee of common units shall be admitted as a limited partner with respect to the common units transferred when such transfer and admission is reflected in our books and records. Each transferee:

 

represents that the transferee has the capacity, power and authority to become bound by our Partnership Agreement;

 

is bound by our Partnership Agreement;

 

grants the powers of attorney set forth in the Partnership Agreement; and

 

gives the consents and waivers contained in our Partnership Agreement.

 

Common units are securities and are transferable according to the laws governing transfer of securities. In addition to other rights acquired upon transfer, the transferor gives the transferee the right to become a limited partner in our partnership for the transferred common units.

Until a common unit has been transferred on our books, we and the transfer agent may treat the record holder of the unit as the absolute owner for all purposes, except as otherwise required by law or stock exchange regulations.

 

A transferee will become a substituted limited partner of our partnership for the transferred common units automatically upon the recording of the transfer on our books and records.

 

We may, at our discretion, treat the nominee holder of a common unit as the absolute owner of such common units without further inquiry, except as otherwise provided by law or stock exchange regulations. In that case, we expect that the beneficial holder’s rights are limited solely to those that it has against the nominee holder as a result of any agreement between the beneficial owner and the nominee holder.

 

Distributions of Available Cash

 

For further discussion of distributions of available cash, please read “Item 8. Financial Information—How We Make Cash Distributions” in our Annual Report.

 

General

 

Within approximately 45 days after the end of each quarter, subject to legal limitations, we distribute all of our available cash to unitholders of record on the applicable record date.

 

Definition of Available Cash

 

Available cash means, for each fiscal quarter, all cash and cash equivalents on hand at the end of the quarter:

 

less the amount of cash reserves established by our board of directors to:

 

           provide for the proper conduct of our business (including reserves for future capital expenditures and for our anticipated credit needs);

 

comply with applicable law, any of our debt instruments, or other agreements; or

 

           to the extent permitted under our Partnership Agreement, provide funds for distributions to our unitholders and to our General Partner for any one or more of the next four quarters;

 

            plus all additional cash and cash equivalents on hand on the date of determination of available cash for the quarter resulting from working capital borrowings made after the end of the quarter. Working capital borrowings are generally borrowings that are made under our credit agreement and in all cases are used solely for working capital purposes or to pay distributions to partners.

 

Minimum Quarterly Distribution

 

Our Partnership Agreement provides that the minimum quarterly distribution on our common units is (on a pre-reverse split-adjusted basis) $0.2325 per unit, which is equal to $0.93 per unit per year, or (on a reverse split-adjusted basis) $1.6275 per unit, which is equal to $6.51 per unit per year. You should note that there is no guarantee that we will pay the minimum quarterly distribution on the common units in any quarter. Failure to distribute the minimum quarterly distribution on the common units results in our inability to establish certain cash reserves (see “—Definition of Available Cash” above).

 

Distribution Policy

 

Our cash distribution policy generally reflects a basic judgment that our unitholders are better served by us distributing our available cash (after deducting expenses, including cash reserves) rather than retaining it. Because we believe that, subject to our ability to obtain required financing and access financial markets, we will generally finance any expansion capital expenditures from external financing sources, we believe that our investors are best served by us distributing all of our available cash. The board of directors seeks to maintain a balance between the level of reserves it takes to protect our financial position and liquidity against the desirability of maintaining distributions on the limited partnership interests. We intend to review our distributions from time to time in the light of a range of factors, including, among other things, our access to the capital markets, the repayment or refinancing of our external debt, the level of our capital expenditures and our ability to pursue accretive transactions.

 

Even if our cash distribution policy is not modified or revoked, the decision to make any distribution and the amount thereof are determined by our board of directors, taking into consideration the terms of our Partnership Agreement. Our distribution policy is subject to certain restrictions, including the following:

 

             Our common unitholders have no contractual or other legal right to receive distributions other than the right under our Partnership Agreement to receive available cash on a quarterly basis. Our board of directors has broad discretion to establish reserves and other limitations in determining the amount of available cash.

 

             While our Partnership Agreement requires us to distribute all of our available cash, our Partnership Agreement, including provisions requiring us to make cash distributions contained therein, may be amended. The Partnership Agreement can be amended in certain circumstances with the approval of a majority of the outstanding common units.

 

            Even if our cash distribution policy is not modified or revoked, the amount of distributions we pay under our cash distribution policy and the decision to make any distribution is determined by our board of directors, taking into consideration the terms of our Partnership Agreement and the establishment of any reserves for the prudent conduct of our business.

 

             Under Section 51 of the Marshall Islands Limited Partnership Act, we may not make a distribution if, after giving effect to the distribution, our liabilities (other than liabilities to partners on account of their partnership interest and liabilities for which the recourse of creditors is limited to specified property of ours) would exceed the fair value of our assets, except that the fair value of property that is subject to a liability for which the recourse of creditors is limited shall be included in our assets only to the extent that the fair value of that property exceeds that liability.

 

            We may lack sufficient cash to pay distributions on our common units due to, among other things, decreases in net revenues or increases in operating expenses, principal and interest payments on outstanding debt, tax expenses, working capital requirements, maintenance and replacement capital expenditures or anticipated cash needs.

 

            Our distribution policy will be affected by restrictions on distributions under our credit facilities which contain material financial tests and covenants that must be satisfied. Should we be unable to satisfy these terms, covenants and restrictions included in our credit facilities or if we are otherwise in default under the credit agreements, our ability to make cash distributions to our unitholders, notwithstanding our stated cash distribution policy, would be materially adversely affected.

 

            If we make distributions out of capital surplus, as opposed to operating surplus, such distributions will constitute a return of capital and will result in a reduction in the quarterly distribution and the target distribution levels. We do not anticipate that we will make any distributions from capital surplus.

 

            If the ability of our subsidiaries to make any distribution to us is restricted by, among other things, the provisions of existing and future indebtedness, applicable partnership and limited liability company laws or any other laws and regulations, our ability to make distributions to our unitholders may be restricted.

 

We have generally declared distributions on our common units in January, April, July and October of each year and paid those distributions in the subsequent month according to our distribution policy, which has changed from time to time.

 

Distributions of Cash Upon Liquidation

 

If we dissolve in accordance with the Partnership Agreement, we will sell or otherwise dispose of our assets in a process called liquidation. We will apply the proceeds of liquidation in the manner set forth below. If, as of the date three trading days prior to the announcement of the proposed liquidation, the average closing price for our common units for the preceding 20 trading days (or the current market price) is greater than the sum of:

 

             any arrearages in payment of the minimum quarterly distribution on the common units issued in our initial public offering for any prior quarters during the subordination period (as described below); plus

 

             the initial unit price of the common units issued in our initial public offering (adjusted as our board of directors determines to be appropriate to give effect to any distribution, subdivision or combination, such as the reverse unit split we effected in March 2019 in connection with the DSS Transaction) (less any prior capital surplus distributions and any prior cash distributions made in connection with a partial liquidation); then the proceeds of the liquidation will be applied as follows:

 

           first, 98.0% to the common unitholders, pro rata, and 2.0% to our General Partner, until we distribute for each outstanding common unit an amount equal to the current market price of our common units; and

 

thereafter, 50.0% to all unitholders, pro rata, 48.0% to holders of incentive distribution rights and 2.0% to our General Partner.

 

If, as of the date three trading days prior to the announcement of the proposed liquidation, the current market price of our common units is equal to or less than the sum of:

 

            any arrearages in payment of the minimum quarterly distribution on the common units issued in our initial public offering for any prior quarters during the subordination period; plus

 

             the initial unit price of the common units issued in our initial public offering (adjusted as our board of directors determines to be appropriate to give effect to any distribution, subdivision or combination, such as the reverse unit split we effected in March 2019 in connection with the DSS Transaction) (less any prior capital surplus distributions and any prior cash distributions made in connection with a partial liquidation); then the proceeds of the liquidation will be applied as follows:

 

           first, 98.0% to the common unitholders, pro rata, and 2.0% to our General Partner, until we distribute for each outstanding common unit an amount equal to such initial unit price (as adjusted) (less any prior capital surplus distributions and any prior cash distributions made in connection with a partial liquidation);

 

           second, 98.0% to the common unitholders, pro rata, and 2.0% to our General Partner, until we distribute for each outstanding common unit an amount equal to any arrearages in payment of the minimum quarterly distribution on the common units for any prior quarters during the subordination period; and

 

thereafter, 50.0% to all unitholders, pro rata, 48.0% to holders of incentive distribution rights and 2.0% to our General Partner.

 

The preceding paragraph is based on the assumption that our General Partner maintains its initial 2.0% general partner interest and has not transferred the incentive distribution rights and that we do not issue additional classes of equity securities. As of the date of the Annual Report, our General Partner holds a 1.84% general partner interest

 

Exhibit 4.17

SELLER’S CREDIT AGREEMENT

 

 

 

 

 

 

Capital Maritime & Trading Corp.

as Seller

 

 

 

 

 

Capital Product Partners L.P.

as Buyer

 

 

 

US$ 6,000,000.00 (United States Dollars Six Million)

 

This Seller’s Credit Agreement (this "Agreement") is dated 27 January 2021 and made between

(1) Capital Maritime & Trading Corp., a corporation incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands (the "Seller"); and
(2) Capital Product Partners L.P., a limited partnership incorporated in the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, (the "Buyer").

WHEREAS

(A) The Seller owns
(i) One Hundred (100) issued and outstanding registered shares, without par value (the “Neos Shares”), of NEOS CONTAINER CARRIERS CORP., a Marshall Islands corporation (the “Neos Subsidiary”), representing all of the issued and outstanding shares of capital stock of the Neos Subsidiary and the Neos Subsidiary is the registered owner of the Liberian flagged container carrier “Long Beach Express” (the “Neos Vessel”);
(ii) One Hundred (100) issued and outstanding registered shares, without par value (the “Filos Shares”), of FILOS CONTAINER CARRIERS CORP., a Marshall Islands corporation (the “Filos Subsidiary”), representing all of the issued and outstanding shares of capital stock of the Filos Subsidiary and the Filos Subsidiary is the registered owner of the Liberian flagged container carrier “Fos Express” (the “Filos Vessel”); and
(iii) One Hundred (100) issued and outstanding registered shares, without par value (the “Maistros Shares” and together with Neos Shares and Filos Shares the “Shares”), of NEOS CONTAINER CARRIERS CORP., a Marshall Islands corporation (the “Maistros Subsidiary” and together with Neos Subsidiary and Filos Subsidiary the “Subsidiaries”), representing all of the issued and outstanding shares of capital stock of the Maistros Subsidiary and the Maistros Subsidiary is the registered owner of the Liberian flagged container carrier “Seattle Express” (the “Maistros Vessel” and together with Neos Vessel and Filos Vessel the “Vessels”);
(B) The Buyer has agreed to purchase 100% of the Shares and therefore each Subsidiary and each of the Vessels under separate Share Purchase Agreements entered or to be entered between Seller and Buyer (each an “SPA”);
(C) The Seller and the Buyer hereby agree that the payment of an amount of US$ 6,000,000.00 (United States Dollars Six Million) of the total purchase price for all Shares under the SPAs shall be deferred, by way of a credit granted by the Seller to the Buyer (the "Seller’s Credit"), with such deferred amounts to be repaid in accordance with the terms of this Agreement.
1 Purpose

This Agreement sets out the terms and conditions upon which the Seller will grant the Buyer credit in an amount equal to the Seller’s Credit in connection with the purchase by the Buyer of the Vessels from the Seller.

2 Interpretation

In this Agreement, the following words and expressions shall have the meaning set opposite them below, and words importing the singular shall (unless the contrary intention appears) include the plural and vice versa:

"Seller’s Credit" an amount of US$ 6,000,000.00 (United States Dollars Six Million) of the purchase price payable under the SPAs representing a credit granted by the Seller to the Buyer, the payment of which shall be deferred in accordance with the terms of this Agreement.
"Banking Day" a day on which banks are open for the transaction of business in the country of the currency stipulated and of the nature required by this Agreement in Greece, Germany and New York.
"Delivery Date" the date on which the Shares are actually transferred by the Seller to the Buyer pursuant to the SPAs as may be supplemented or amended from time to time.
"Event of Default" any of the events or circumstances described in Clause 6.1.

"Security" a mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.

3 Drawdown and Adjustments

The Seller’s Credit shall be deemed to have been drawn by the Buyer on the Delivery Date by virtue of the commercial invoice signed between the Seller and Buyer.

4 Payment and Prepayment
4.1 The Buyer shall be entitled to prepay the Seller’s Credit in whole or in part at any time without penalty, by giving the Seller not less than 3 Banking Days' irrevocable notice.
4.2 The Buyer shall repay the Seller’s Credit (net of any fees, taxes and charges) latest five (5) years after the Delivery Date.

5 Interest

5.1 The Seller’s Credit amount outstanding shall bear interest at a rate of five per cent (5%) per annum payable quarterly in arrears commencing on the date falling three months after the Delivery Date. Interest shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.
6 Events of Default
6.1 There shall be an Event of Default if
(a) the Buyer fails to pay any amount when due hereunder;
(b) the Buyer:
(i) is unable or admits inability to pay its debts as they fall due; or
(ii) is deemed to, or is declared to, be unable to pay its debts under applicable law;
(c) any indebtedness of the Buyer in an amount in excess of US$ 5,000,000.00 (United States Dollars Five Million) is not paid when due or becomes due and payable prior to the date when it would otherwise have become due or any creditor becomes entitled to declare any such indebtedness due and payable;
(d) The value of the assets of the Buyer is less than its liabilities (taking into account contingent, prospective or threatened claims and liabilities); or
(e) A moratorium is declared in respect of any indebtedness of the Buyer in excess of US$ 5,000,000.00 (United States Dollars Five Million). If a moratorium occurs, the ending of the moratorium will not remedy any event of default caused by that moratorium under this Agreement.
6.2 Upon any occurrence of an Event of Default the Seller shall be entitled to declare by written notice to the Buyer that unless the Event of Default is remedied within three (3) Banking Days the Seller’s Credit has become due and payable whereupon the same shall immediately or in accordance with such notice become due.
6.3 On and at any time after the occurrence of an Event of Default the Seller may take any action which, as a result of the Event of Default, the Seller is entitled to take under this Agreement, or any applicable law or regulation.
7 Arrangement Fee

The Buyer shall pay the Seller an Arrangement Fee of US$ 50,000 (United States Dollars fifty thousand) on drawdown.

8 Miscellaneous
8.1 If at any time any provisions of this Agreement are or become illegal, invalid or unenforceable in any respect, under the law of any jurisdiction, neither the legality, validity nor enforceability of the remaining provisions (as amended or supplemented) shall in any way be affected or impaired thereby.

8.2 No delay or failure by either party in exercising any right or remedy shall be construed or take effect as a waiver or release of that right or remedy, and either party shall always be entitled to exercise all its remedies unless it shall have expressly waived them in writing.
9 Assignments

None of the parties may assign any of their rights or obligations under this Agreement without the prior written consent of the other party.

10 Notices

Except as otherwise provided for in this Agreement, all notices or other communications under or in respect of this Agreement to any party hereto shall be in writing and shall be made or given to such party at the address or e-mail address appearing below, or at such other place as such party may hereafter specify for such purpose;

(i) in the case of the Buyer:

 

c/o Jerry Kalogiratos

Chief Executive Officer

Capital Product Partners L.P.

3 Iasonos Street

185 37 Piraeus

Greece

Tel. +30 210 4584 950

Mob. +30 6948 756 738

E-mail: [email protected]

 

(ii) in the case of the Seller:

 

c/o Vangelis G. Bairactaris

Bairactaris & Partners

130, Kolokotroni str.,

185 36 - Piraeus, Greece
Tel.: +30 210 4284 608
Fax: +30 210 4284 626/7
E-mail: [email protected]    

 

A notice or other communication received on a non-working day or after business hours in the place of receipt shall be deemed to be served on the next following working day in such place. Subject always to the foregoing sentence, any communication by personal delivery or letter shall be deemed to be received on delivery.

All communications and documents delivered pursuant to or otherwise relating to this Agreement shall be either in English or accompanied by a certified translation into English.

11 Counterparts

This Agreement may be executed in counterparts and all such counterparts taken together shall be deemed to constitute one and the same document.

12 Third Party Rights

Unless the right of enforcement is expressly granted, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any terms of this Agreement.

The parties may rescind or vary this Agreement without the consent of a third party to whom an express right to enforce any of its terms has been provided.

13 Law and jurisdiction
13.1 This Agreement and any non-contractual obligations arising out or in connection with it shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Agreement shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof for the time being in force. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms then in force. The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 day specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement.

In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 (United States Dollars One Hundred Thousand) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced.

The arbitration proceedings and awards shall be kept confidential.

 

IN WITNESS HEREOF the parties have duly signed and executed this Agreement on the day and year first above written.

 

SELLER

 

for and on behalf of Capital Maritime & Trading Corp.

 

 

 

 

_____________________________

Name: Gerasimos Kalogiratos

Title: Director/Chief Financial Officer

 

 

 

 

 

 

 

BUYER

 

for and on behalf of Capital Product Partners L.P.

 

 

 

 

___________________________

Name: Gerasimos Kalogiratos

Title: Director/Chief Executive Officer

 

 

 

 

 

 

Exhibit 4.18

 

Certain identified information has been excluded from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. [*****] indicates that information has been redacted.

 

 

Norwegian Shipbrokers’ Association’s Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO in 1956.

Code-name

SALEFORM 2012

Revised 1966, 1983 and 1986/87, 1993 and 2012

  

 

 

MEMORANDUM OF AGREEMENT

1 Dated: 7th April 2021
2 Poseidon Container Carrier S.A. of Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, Marshall Islands (Name of sellers), hereinafter called the “Sellers”, have agreed to sell, and
3 [*****] whose performance hereunder is hereby irrevocably and unconditionally guaranteed, as primary obligor and note merely as surety, by [*****] (Name of buyers), hereinafter called the “Buyers”, have agreed to buy:
4 Name of vessel: m/v ADONIS (ex CMA CGM Uruguay)
5 IMO Number: 9706310
6 Classification Society: Lloyd’s Register
7 Class Notation: +100A1 CONTAINER SHIP, SHIPRIGHT(SDA, FDA PLUS(25, WW), CM, ACS(B)), *IWS, LI, ECO(BWT, EEDI, IHM), BOXMAX(V,W). +LMC, UMS, NAVI
Descriptive Notes SHIPRIGHT SERS, SHIPRIGHT BWMP (T), SHIPRIGHT SCM
8 Year of Build: 2015_ Builder/Yard: Daewoo-Mangalia, Romania
9 Flag: Malta Place of Registration: La Valetta GT/NT: 96424/59714
10 hereinafter called the ‘Vessel”, on the following terms and conditions:
11 Definitions
12 “Banking Days” are days on which banks are open both in the country of the currency stipulated for
13 the Purchase Price in Clause 1, {Purchase Price) and in the place of closing stipulated in Clause 8
14 (Documentation), London, Hamburg, Liberia, Malta, Portugal and Geneva.                    (add additional

Jurisdictions as appropriate).

15 “Buyers’Nominated Flag…·state” means either Malta (if Novation Agreement) or Madeira (if free of charter) (state flag state).
16 “Class” means the class notation referred to above.
17 “Classification Society’’ means the Society referred to above.

Charterers: means ZIM Integrated Shipping Services Ltd.

18 “Deposit” shall have the meaning given in Clause 2 (Deposit)
19 “Escrow Agent” means a UK law firm with its London or any Far East office nominated by Sellers, who shall hold the Deposit (and if requested by the Sellers the Balance Funds) in the names of the Parties, and who shall release same in accordance with and pursuant to the terms of an escrow agreement to be entered into between themselves (acting as escrow agent), the Sellers and the Buyers (the “Escrow Agreement’). The Parties agree that HFW, WFW, Hill Dickinson and Ince & Co are deemed acceptable.

“Deposit Holder” means                              (state name and location of Deposit Holder) or, if left blank, the

20 Sellers’ Bank, which shall hold and release the Deposit in accordance with this Agreement.

“First MOA” means the memorandum of agreement to be entered between Sellers as buyer and
HAI KUO SHIPPING 1989C LIMITED, of Level 54, Hopewell Centre, 183 Queen’s Road East,
Hong Kong (registered owner) being the current registered owner of the Vessel (the “First
Sellers”) as seller.

 

“First MOA Payment” has the meaning given to it in Clause 3.

“First PoDA” means the protocol of delivery and acceptance for the Vessel under the First MOA.

21 “In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, a
22 registered letter, e-mail or telefax.

”MOA PoDA” means the protocol of delivery and acceptance for the Vessel between the Sellers and the Buyers as per Clause 8.

23 “Parties” means the Sellers and the Buyers.
24 “Purchase Price” means the price for the Vessel as stated in Clause 1 (Purchase Price).
25 “Sellers’ Account” means the account or accounts to he notified by the Sellers to the Buyers for
receipt of the Purchase Price
. (state details of bank account) at the Sellers’ Bank.
26 “Sellers’ Bank” means the bank or banks to be (state name of bank, branch and details) or, if left blank, the bank.
27 notified by the Sellers to the Buyers for receipt of the balance of the Purchase Price.

“Time Charter” means [*****]

28 1. Purchase Price
29 The Purchase Price is US$ 96,000,000.- {United States Dollars ninety six million) (state currency
and amount both in words and figures)
.
30 2. Deposit.
31 As security for the correct fulfillment of this Agreement the Buyers shall lodge a deposit of
32 % (            per cent) or, if left blank, 10% (ten per cent), of the Purchase Price (the
33 “Deposit”) in an interest bearing account for the Parties with the Escrow Agent Deposit Holder
within three (3)
34 Banking Days·after the date that:
35 (i) this Agreement has been signed by the Parties and exchanged in original or by e-mail or
36 telefax; and
(ii) the Escrow Agreement has been signed by the Parties and the Escrow Agent and changed by e-mail or telefax; and
37 (iii) the Escrow Agent Deposit Holder has confirmed in writing to the Parties that the account
has been
38 opened.
39 The Deposit shall be released in accordance with joint written instructions of the Parties.
40 Interest, if any, shall be credited to the Buyers. Any fee charged for holding and releasing the
41 Deposit shall be borne equally by the Parties. The Parties shall provide to the Escrow Agent
Deposit Holder
42 all necessary documentation to open and maintain the account without delay.

43 3. Payment

(A)        At the time of delivery of the Vessel to the Buyers under this Agreement (which shall occur immediately after the delivery of the Vessel by the First Sellers to the Sellers as buyers under the First MOA) but not later than three (3) Banking Days after the date that Notice of Readiness has
been given in accordance with Clause 5 (time and Place of delivery and notices):

(i)       the Deposit shall be released to the Sellers; and

(ii)       the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement (the “Balance Funds’’) shall be paid or released (as the case may be) in accordance with the provisions of Clause 3.

(B)       All amounts due and payable by the Buyers under this Agreement shall be paid free of bank charges.

(C)       Two (2) Banking Days prior to the anticipated delivery date of the Vessel (as notified in
writing by Sellers to the Buyers in accordance with Clause 5 (Notices, time and place of delivery), the Buyers shall lodge an amount equivalent to the Balance Funds (which shall remain at the orders of the Buyers or its financiers until delivery) at Sellers’ option as per below alternatives to be advised by Sellers to Buyers not later than five (5) Banking Days prior to delivery:

(i)       Option A: by way of one conditional payment order MT199 bank transfer ( “MT199’’) to be
held to the Buyers’ (or their financiers) order:

(a)       to the bank or an escrow agent related to the First Sellers any part of the Balance Funds due to the First Sellers under the First MOA (the “First. MOA Payment’’), with an instruction that the amount so remitted shall be payable and released to the First Sellers only against presentation by the First Sellers to their bank or escrow agent of (i) a pdf/copy of the timed and dated First PoDA
and (ii) a pdf/copy of the timed and dated MOA PoDA duly executed by the authorized signatories of the Sellers and the Buyers, as identified in the MT199 and any release instructions as may be required to an escrow agent; and

(b)       any part of the Balance Funds not remitted as (a) above to the bank or an escrow agent of the First Sellers and to be paid to the Sellers under this Agreement as may be adjusted in accordance with this Agreement (the “Sellers’ Portion”) in an escrow account held with the Escrow Agent in accordance with and pursuant to the Escrow Agreement to be held in the sole name of the Buyers and to be released in favour of the Sellers to Sellers’ Account and remitted by the Escrow Agent on closing to the Sellers to Sellers’ Account (together with the Deposit) ,

The MT199 shall provide that if the pre-positioned funds are not released within the period of five

(5) Banking Days from the date of receipt by the First Sellers bank the funds shall immediately be returned to the Buyers -Interest (if any) accrued shall be/or the Buyers’ account.

(ii)       Option B: in an escrow account held with an Escrow Agent in accordance with and pursuant to the Escrow Agreement to be held in the sole name and order of the Buyers and to be released in favour of the Sellers to Sellers’ Account as regards the Sellers’ Portion (together with the Deposit) and to Sellers’ order in favour of the First Sellers and remitted by the Escrow Agent upon delivery of the Vessel

(D)       Any cost related to the payment under this Clause 3 (irrespective of whether Option 1 or 2 is selected) shall be shared equally between the Buyers and Sellers.

44 On delivery of the Vessel, but not later than three 3) Banking Days after the date that Notice of
45 Readiness has been given in accordance with Clause 5 (Time and place of delivery and
46 notices):
47 (i) the Deposit shall be released to the Sellers; and
48 (ii) the balance of the Purchase Price and all other sums payable on delivery by the Buyers
49 to the Sellers under this Agreement shall be paid in full free of bank charges to the
50 Sellers’ Account.
51 4. Inspection
52 (a)*The Buyers have inspected and accepted the Vessel’s classification records. The Buyers have
waived their right to inspect the Vessel and have
53 have also inspected the Vessel at/in                      (state place) on                      (state date) and have
54 accepted the Vessel following this inspection and therefore the sale is outright and definite, subject
only
55 to the terms and conditions of this Agreement.
56 (b) *The Buyers shall have the right to inspect the Vessel’s classification records and declare
57 whether same are accepted or not within                 (state date/period).
58 The Sellers shall make the Vessel available for inspection at/in                      (state place/range) within
59 (state date/period).
60 The Buyers shall undertake the inspection without undue delay to the Vessel: Should the
61 Buyers cause undue delay they shall compensate the Sellers for the losses thereby incurred.
62 The Buyers shall inspect the Vessel without opening up and without cost to the Sellers.
63 During the inspection, the Vessel’s deck and engine log books shall be made available for
64 examination by the Buyers.
65 The sale shall become outright and definite, subject only to the terms and conditions of this
66 Agreement, provided that the Sellers receive written notice of acceptance of the Vessel from
67 the Buyers within seventy-two (72) hours after completion of such inspection or after the
68 date/last day of the period stated in Line 59, whichever is earlier.
69 Should the Buyers fail to undertake the inspection as scheduled and/or notice of acceptance of
70 the Vessel’s classification records and/or of the Vessel not be received by the Sellers as
71 aforesaid, the Deposit together with interest earned, if any, shall be released immediately to the
72 Buyers, whereafter this Agreement shall be null and void.
73 *4(a) and 4(b) are alternatives; delete whichever is not applicable. In the absence of deletions,
74 alternative 4(a) shall apply.
75 5. Time and place of delivery and notices
76 (a) The Vessel shall be delivered and taken over safely afloat at a safe and accessible berth or
77 anchorage at/in within the Vessel’s trading area as per the Time Charter (state place/range) in
the Sellers’ option.
78 Notice of Readiness shall not be tendered before: 15th July 2021 in the Sellers’ option (date)
79 Cancelling Date (see Clauses 5(c), 6 (a)(i), 6(a) (iii), and 14 and 19): 31st August 2021 in Buyers’
option

(i)       Subject always to subparagraph (ii), if at any time prior to tendering Notice of Readiness for delivery the position at the intended place of delivery has changed such that the Sellers would
not be able to comply with their obligations under this Agreement were the Vessel to be
delivered at such place due to Covid19 local restrictions, the Sellers shall be entitled to
nominate another place of delivery within the range specified in Clause 5 of this Agreement
where the Buyers are able to embark their crew acceptable to Buyers whose acceptance shall be given within one (1) Banking Day and shall not be unreasonably withheld or conditioned and
which shall have due regard to mitigating additional costs for the Sellers and minimising
disruption to the Charterer’s service and use of the Vessel (“Alternative Place of Delivery”). In
such event, the Cancelling Date shall be extended by the time taken to agree on Alternative Place of Delivery and for the Vessel to move from her location at the time of the new
nomination until she arrives at the Alternative Place of Delivery.

(ii)       Notwithstanding anything to the contrary in sub-paragraph (i) above, in the event that either the Sellers or the Vessel at the place of delivery (whether it be the original intended place of
delivery or the Alternative Place of Delivery) are subject to a quarantine (but thereafter can
perform / comply with their obligations under this Agreement) then the Sellers shall have the
option of delivering the Vessel at such place after the expiry of the relevant quarantine period and the Cancelling Date shall be extended by such period.

Any additional expenses, including but not limited to additional bunkers consumed, harbour
dues, screening, cleaning, fumigating and/or quarantining the Vessel and its crew (together the “Relocation Expenses”) arising directly or indirectly from a delay in the performance of the obligations of either party under this Agreement as a result of delays/restrictions/measures
arising due to Covid-19 or proceeding to an Alternative Place of Delivery instead of the place of delivery originally nominated in accordance with Clause 5 shall be shared on a 50/50 basis,
against presentation of reasonable supporting documentation Payment under this Clause shall
be made at the same time and place and in the same currency as the Purchase Price:

In the event that it is not possible to deliver the Vessel within the range of delivery places set out in Clause 5(a) of this Agreement, the Sellers and the Buyers shall use their best endeavours,
acting in good faith, to find another place at which delivery can be given and the Buyers shall
not be entitled to exercise any right of cancellation under this Agreement until such time as it is clear that no agreement can be reached.

80 (b) The Sellers shall keep the Buyers well informed of the Vessel’s itinerary and shall
81 provide the Buyers with thirty (30), twenty (20), ten (10), five (5) and three (3) days’
approximate notice and one (1) day definite notice of the date the
82 Sellers intend to tender Notice of Readiness and of the intended place of delivery.
83 When the Vessel is at the place of delivery and physically ready for delivery in accordance with
84 this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
85 (c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the
86 Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing
87 stating the date when they anticipate that the Vessel will be ready for delivery and proposing a
88 new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of
89 either cancelling this Agreement in accordance with Clause 14 (Sellers’ Default) within one (1)
three (3)
90 Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date.
91 If the Buyers have not declared their option within one (1) three (3) Banking Days of receipt of the
92 Sellers’ notification or if the Buyers accept the new date, the date proposed in the Sellers’
93 notification shall be deemed to be the new Cancelling Date and shall be substituted for the
94 Cancelling Date stipulated in line 79.
95 If this agreement is maintained with the new Cancelling Date all other terms and conditions
96 hereof including those contained in Clauses 5(b) and S(d) shall remain unaltered and in full
97 force and effect.
98 (d) Cancellation, failure to cancel or acceptance of the new Cancelling Date shall be entirely
99 without prejudice to any claim for damages the Buyers may have under Clause 14 (Sellers’
100 Default) for the Vessel not being ready by the original Cancelling Date.
101 (e) Should the Vessel become an actual, constructive or compromised total loss before delivery
102 the Deposit together with interest earned, if any, shall be released immediately to the Buyers
103 whereafter this Agreement shall be null and void.

104 6. Divers Inspection/ Drydocking
105 (a)*
106 (i) The Buyers herewith declare shall have the option at their cost and expense to arrange for
an underwater
107 inspection by a diver approved by the Classification Society prior to the delivery of the
108 Vessel. The underwater inspection may take place at a port/place prior to arrival at the
place of delivery and shall be organised and arranged by the Sellers and paid for by the
Buyers (in such event, the Sellers shall provide the Buyers on delivery with a letter of
undertaking that to the best of Sellers knowledge and belief the Vessel has not touched
bottom or grounded from the time of said inspection until delivery)
. Such option shall be
declared latest nine (9) days prior to the Vessel’s intended
109 date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this
110 Agreement. The Sellers shall at their cost and expense make the Vessel available for
111 such inspection. This inspection shall be carried out without undue delay and in the
112 presence of a Classification Society surveyor arranged for by the Sellers and paid for by
113 the Buyers at the time of closing. The Buyers’ representative) shall have the right to be
present at the diver’s
114 inspection as observer(s) only without interfering with the work or decisions of the
115 Classification Society surveyor. The extent of the inspection. -and the conditions under
116 which it is performed shall be to the satisfaction of the Classification Society. If the
117 underwater inspection is scheduled for the place of delivery but the conditions at the
place of delivery are unsuitable for such inspection
(other than for any reason set out in
Clause 5 (b), in which case the provisions of Clause 5 (b) will apply)
, the Sellers shall at
118 their cost and expense make the Vessel available at a suitable alternative place near to
119 the delivery port, in which event the Cancelling Date shall be extended by the additional
120 time required for such positioning and the subsequent re-positioning unless otherwise
mutually agreed
. The Sellers may
121 not tender Notice of Readiness prior to completion of the underwater inspection.
122 (ii) If the rudder, propeller, bottom or other underwater parts below the deepest load line are
123 found broken, damaged or defective so. as to affect the Vessel’s class, then (1) unless
124 repairs can be carried out afloat to the’ .satisfaction of the Classification Society, the
125 Sellers shall arrange for the Vessel to be drydocked at their expense for inspection by
126 the Classification Society of the Vessel’s underwater parts below the deepest load line,
127 the extent of the inspection being ·in accordance with the Classification Society’s rules (2)
128 such defects shall be made good by the Sellers at their cost and expense to the
129 satisfaction of the Classification Society without condition/recommendation** and (3) the
130 Sellers shall pay for the underwater inspection and the Classification Society’s
131 attendance.
132 Notwithstanding anything to the contrary in this Agreement, if the Classification Society
133 do not require the aforementioned defects to be rectified before the next class
134 drydocking survey, the Sellers shall be entitled to deliver the Vessel with these defects
135 against a deduction from the Purchase Price of the estimated direct cost (of labour and
136 materials) of carrying out the repairs to the satisfaction of the Classification Society,
137 whereafter the Buyers shall have no further rights whatsoever in respect of the defects
138 and/or repairs. The estimated direct cost of the repairs shall be the average of quotes for
139 the repair work obtained from two reputable independent shipyards in the People’s at or in
the vicinity of
140 the port of delivery Republic of China, one to be obtained by each of the Parties within two
(2)
three (3) Banking
141 Days from the date of the imposition of the condition/recommendation, unless the Parties
142 agree otherwise. Should either of the Parties fail to obtain such a quote within the
143 stipulated time then the quote duly obtained by the other Party shall be the sole basis for
144 the estimate of the direct repair costs. The Sellers shall may not re-tender Notice of
Readiness
upon
145 prior to such estimate having been established.

Notwithstanding anything to the contrary in this Agreement, the Cancelling Date shall
be automatically extended for the time required to either i) agree the deduction from the
Purchase Price as set out above, or ii) for the repairs to be carried out afloat pursuant to
6 (a) (ii), if such delay(s) in reaching an agreement on the deduction of the Purchase
Price or performing repairs to the Vessel afloat would lead to the Vessel missing its
Cancelling Date.

 

146 (iii) If the Vessel is to be drydocked pursuant to Clause 6(a) (ii) and no suitable dry-docking
147 facilities are available at the port of delivery, the Sellers shall take the Vessel to a port
148 where suitable drydocking facilities are available, whether within or outside the delivery
149 range as per Clause 5(a). Once drydocking has taken place the Sellers shall deliver the
150 Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose
151 of this Clause, become the new port of delivery. In such event the Cancelling Date shall
152 be extended by the additional time required for the drydocking and extra steaming, but
153 limited to a maximum of forty-five (45) fourteen (14) days.
154 (b) *The Sellers shall place the Vessel in drydock at the port of delivery for inspection by the
155 Classification Society of the Vessel’s underwater parts below the deepest load line, the extent
156 of the inspection being in accordance with the Classification Society’s Rules. If the rudder,
157 propeller, bottom or other underwater parts below· the deepest load line are found broken,
158 damaged or defective so as to affect the Vessel’s class, such defects shall be made good at the
159 Seller’s cost and expense to the satisfaction of the Classification Society without
160 condition/recommendation**. In such event the Sellers are also to pay for the costs and
161 expenses in connection with putting the Vessel in and taking her out of drydock, including the
162 drydock dues and the Classification Society’s fees. The Sellers shall also pay for these costs
163 and expenses if parts of the tailshaft system are condemned or found defective or broken so as
164 to affect the Vessel’s class. In all other cases, the Buyers shall pay the aforesaid costs and
165 expenses, dues and fees.
166 (c) If the Vessel is drydocked pursuant to Clause 6(a) (ii) or 6 (b) above:
167 (i) The Classification Society may require survey of the tailshaft system, the extent of the
168 survey being to the satisfaction of the Classification Society surveyor. If such survey is
169 not required by the Classification Society, the Buyers shall have the option to require the
170 tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey
171 being in accordance with the Classification Society’s rules for tailshaft survey and
172 consistent with the current stage of the Vessel’s survey cycle. The Buyers shall declare
173 whether they require the tailshaft to’ be drawn and surveyed not later than by the
174 completion of the inspection by the Classification Society. The drawing and refitting of
175 the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be
176 condemned or found defective so as to affect the Vessel’s class, those parts shall be
177 renewed or made good at the Sellers’ cost and expense to the satisfaction of the
178 Classification Society without condition/recommendation**.
179 (ii) The costs and expenses relating to the survey of the tailshaft system shall be borne
180 by the Buyers unless the Classification Society requires such survey to be carried out or if
181 parts of the system are condemned or found defective or broken so as to affect the
182 Vessel’s class, in which case the Sellers shall pay these costs and expenses.
183 (iii) The Buyers’ representative(s) shall have the right to be present in the drydock, as
184 observer(s) only without interfering with the work or decisions of the Classification
185 Society surveyor.
186 (iv) The Buyers shall have the right to have the underwater parts of the Vessel cleaned
187 and painted at their risk, cost and expense without interfering with the Sellers’ or the
188 Classification Society surveyor’s work, if any, and without affecting the Vessel’s timely
189 delivery. If, however, the Buyers’ work in drydock is still in progress when the
190 Sellers have completed the work which the Sellers are required to do, the additional
191 docking time needed to complete the Buyers’ work shall be for the Buyers’ risk, cost and
192 expense. In the event that the Buyers’ work requires such additional time, the Sellers
193 may upon completion of the Sellers’ work tender Notice of Readiness for delivery whilst
194 the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be
195 obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in
196 drydock or not.
197 *6(a) and 6(b) are alternatives; delete whichever is not applicable. In the absence of deletions,
198 alterative 6(a) shall apply.
199 **Notes or memoranda, if any, in the surveyor’s report which are accepted by the Classification
200 Society without condition/recommendation are not to be taken into account.

 

201 7. Spares, bunkers and other items
202 The Sellers shall deliver the Vessel to the Buyers with everything belonging to her and on board.
203 and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or
204 spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspection this
Agreement
205 used or unused , whether on board or not shall become the Buyers’ property, but spares on
206 order are excluded. Forwarding charges, if any, shall be far the Buyers’ account. The Sellers
207 are not required to replace spare parts including spare tail-end shaft(s) and spare
208 propeller(s)/propeller blade(s)·which are taken out of spare and used as replacement prior to
209 delivery, but the replaced items shall be the property of the Buyers. Unused stores and
210 provisions shall be included in the sale and be taken over by the Buyers without extra payment.
211 Library and forms exclusively for use in the Sellers’ vessel(s) and captain’s, officers’ and crew’s
212 personal belongings including the slop chest are excluded from the sale without compensation. ,
213 as well as the following additional items: (include list)

214 Items on board which are on hire or owned by third parties, listed as follows, are excluded from
215 the sale without compensation: (include list)
- ECDIS (electronic charts), and /SF Watchkeeper software program
- NAVTOR NAVBOX and 2 NAVSTICKS, Power Supply and Octocoupler
- VIKING LIFE RAFTS 4x16 Persons and 2x6 Persons
- Refillable cylinders (Ox, Ac, Freon)
- FX60 Antenna & SC SIGMA Xtreme Rack
- 1 FBB Antenna and BDU (VSAT Backup)
- Fleet phone (Antipiracy)
- Server Hard Disk drives
- NAS device
- All laptop & hard drives
- Chrts hired items: reefer spare kits
216 Items on board at the time of inspection -which are on hire or owned by third parties, not listed
217 above, shall be replaced or procured by the Sellers prior to delivery at their cost and expense.
218 The Buyers shall take over remaining bunkers (unless they are the property of the Charterers)
and unused lubricating and hydraulic oils and
219 greases in storage tanks and unopened drums and pay either:
220 (a)*the actual net price (excluding barging expenses) as evidenced by invoices or vouchers; or
221 (b)*the current net market price (excluding barging expenses) at the port and date of delivery
222 of the Vessel or, if unavailable, at the nearest bunkering port,
223 for the quantities taken over.

The quantities of the bunkers (unless they are the property of the Charterers) and unused
luboils remaining on board shall be measured jointly by the Sellers and the Buyers
representatives on board one (1) Banking Day prior to the expected date of delivery with an
allowance for consumption to be calculated until the expected time of physical delivery. The
allowance to be adjusted in case of a later then calculated delivery.

224 Payment under this Clause shall be made at the same time and place and in the same
225 currency as the Purchase Price.
226 “inspection” in this Clause 7, shall mean the Buyers’ inspection according to Clause 4. (a) or(b)
227 (Inspection), if applicable. If the Vessel is taken over without inspection, the date of this
228 Agreement shall be the relevant date.
229 *(a) and (b) are alterative, delete whichever is not applicable. In the absence of deletions
230 alternative (a) shall apply.

231 8. Documentation
232 The place of closing: e-closing
233 (a) In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the
234 following delivery documents: to be mutually agreed and which shall comply with the Buyers’
Nominated Flag State and registry and to form part of an addendum to this Agreement.
235 (i) Legal Bill(s) of Sale in a form recordable in the Buyers’ Nominated Flag State,
236 transferring title of the Vessel and stating that the Vessel is free from all mortgages,
237 encumbrances and maritime liens or any other debts whatsoever, duly notarially attested
238 and legalised or apostilled, as required by the Buyers’ Nominated Flag .State;
239 (ii) Evidence that all necessary corporate, shareholder and other action has been taken by
240 the Sellers to authorise the execution, delivery and performance of this Agreement;
241 (iii) Power of Attorney of the Sellers appointing one or more representatives.to act on behalf
242 of the Sellers in the performance of this Agreement, duly notarially attested and legalised
243 or apostilled (as appropriate);
244 (iv) Certificate or Transcript of Registry issued by the competent authorities of the flag state
245 on the date of delivery evidencing the Sellers’ ownership of the Vessel and that the
246 Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by
247 such authority to the closing meeting with the original to be sent to the Buyers as soon as
248 possible after delivery of the Vessel;
249 (v) Declaration of Class or (depending on the Classification Society) a Class Maintenance
250 Certificate issued within three (3) Banking Days prior to delivery confirmation that the
251 Vessel is in Class free of condition/recommendation;
252 (vi) Certificate of Deletion of the Vessel from the Vessel’s registry or other official evidence of
253 deletion appropriate to the Vessel’s registry at the time of delivery, or, in the event that
254 the registry does not as a matter of practice issue such documentation immediately, a
255 written undertaking by the Sellers to effect deletion from the Vessel’s registry forthwith
256 and provide a certificate or other official evidence of deletion to the Buyers promptly and
257 latest within four (4) weeks after the Purchase Price has been paid and the Vessel has
258 been delivered;
259 (vii) A copy of the Vessel’s Continuous Synopsis Record certifying the date on which the
260 Vessel ceased to be registered with the Vessel’s registry, or, in the event that the registry
261 does not as a matter of practice issue such certificate immediately, a written undertaking
262 from the Sellers to provide the copy of this certificate promptly .upon it being issued
263 together with evidence of submission by the Sellers of a duly executed Form 2 stating
264 the date on which the Vessel shall cease to be registered with the Vessel’s registry;
265 (viii) Commercial Invoice for the Vessel;
266 (ix) Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases;
267 (x) A. copy of the Sellers’ letter to their satellite communication provider cancelling the
268 Vessel’s communications contract which is to be sent immediately after delivery of the
269 Vessel;
270 (xi) Any additional documents as may reasonably be required by the competent authorities of
271 the Buyers’ Nominated Flag State for the purpose of registering the Vessel, provided the
272 Buyers notify the Sellers of any such documents as soon as possible after the date of
273 this Agreement; and
274 (xii) The Sellers’ letter of confirmation that to the best of their knowledge, the Vessel is not
275 black listed by any nation or international organisation.
276 (b) At the time of delivery the Buyers shall provide the Sellers with: delivery documents to be
mutually agreed and to form part of an addendum to this Agreement.
277 (i) Evidence that all necessary corporate, shareholder and other action has been taken by
278 the Buyers to authorise the execution, delivery and performance of this Agreement; and
279 (ii) Power of Attorney of the Buyers appointing one or more representatives to act on behalf
280 of the Buyers in the performance of this Agreement, duly notarially attested and legalised
281 or apostilled (as appropriate).
282 (c) If any of the documents listed in the Addendum Sub clauses (a) and (b) above are not in the
English
283 language they shall be accompanied by an English translation by an authorised translator or
284 certified by a lawyer qualified to practice in the country of the translated language.
285 (d) The Parties shall to the extent possible exchange copies, drafts or samples of the
286 documents listed in the Addendum Sub clause (a) and Sub clause (b) above for review and
comment by the
287 other party not later than seven (7) (state number of days), or if left blank, nine (9) days prior to
288 the Vessel’s intended date of readiness for delivery as notified by the Sellers pursuant to
289 Clause 5(b) of this Agreement.
290 (e) Concurrent with the exchange of documents in the Addendum Sub clause (a) and Sub clause (b) above,
291 the Sellers shall also hand to the Buyers the classification certificate(s) as well as all plans,
292 drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel. Other
293 certificates which are on board the Vessel shall also be handed over to the Buyers unless the
294 Sellers are required to retain same, in which case the Buyers have the right to take copies.
295 (f) Other technical documentation which may be in the Sellers’ possession shall promptly after
296 delivery be forwarded to the Buyers at their expense, if they so request. The Sellers may keep
297 the Vessel’s log books but the Buyers have the right to take copies of same.
298 (g) The Parties shall sign and deliver to each other a Protocol of Delivery and Acceptance
299 confirming the date and time of delivery of the Vessel from the Sellers to the Buyers.
300 9. Encumbrances
301 The Sellers warrant that the Vessel, at the time of delivery, is free from all charters,
302 encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject
303 to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the
304 Buyers against all consequences of claims made against the Vessel which have been incurred
305 prior to the time of delivery. ·
306 10. Taxes, fees and expenses
307 Any taxes, fees and expenses in connection with the purchase and registration in the Buyers’
308 Nominated Flag State shall be for the Buyers’ account, whereas similar charges in connection
309 with the closing of the Sellers’ register shall be for the Sellers’ account.
310 11. Condition on delivery
311 The Vessel with everything belonging to her shall be at the Sellers’ risk and expense until she is
312 delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be
313 delivered and taken over as she was at the date time of inspection this Agreement, fair wear and
tear excepted.
314 However, the Vessel shall be delivered free of cargo and free of stowaways with her Class
315 maintained without condition/recommendation*, free of average damage affecting the Vessel’s
316 class, and with her classification certificates and national certificates, as well as all other
317 certificates the Vessel had at the time of inspection, clean, valid and unextended if with
Time Charter attached (however if free of Time Charter then clean, valid but maybe extended)
without
318 condition/recommendation* by the Classification Society or the relevant authorities at the time
319 of delivery if the Vessel is delivered after the Time Charter expiration then the Vessel has to be delivered free of cargo.
320 “inspection” in this Clause 11, shall mean the Buyers’ inspection according to Clause 4. (a) or
321 4(b) (inspection), if applicable. If the Vessel is taken over without inspection, the date of this
322 Agreement shall be the relevant date.

323 *Notes and memoranda, if any, in the surveyor’s report which are accepted by the Classification
324 Society without condition/recommendation are not to be taken into account.
325 12. Name/markings
326 Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel
327 markings.
328 13. Buyers’ default
329 Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the
330 right to cancel this Agreement, and they shall be entitled to claim compensation for their losses
331 and for all expenses incurred together with interest.
332 Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers
333 have the right to cancel this Agreement, in which case the Deposit together with interest
334 earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the
335 Sellers shall be entitled to claim further compensation for their losses and for all expenses
336 incurred together with interest.
337 14. Sellers’ default
338 Should the Sellers fail to give Notice of Readiness in accordance with. Clause 5(b) or fail to be
339 ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the
340 option of cancelling this Agreement. If after Notice of Readiness has been given but before
341 the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not
342 made physically ready again by the Cancelling Date and new Notice of Readiness given, the
343 Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this
344 Agreement, the Deposit together with interest earned, if any, shall be released to them
345 immediately.
346 Should the Sellers fail to give Notice of Readiness by the Cancelling Date or fail to be ready to
347 validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers
348 for their loss and for all expenses together with interest if their failure is due to proven
349 negligence and whether or not the Buyers canceI this Agreement.
350 15. Buyers’ representatives
351 After this Agreement has been signed by the Parties and the Deposit has been lodged, the
352 Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and
353 expense for the last fifteen (15) days prior delivery. The right of the Buyers shall be subject to i)
the Charterers consent and ii) Buyers representatives providing negative Covid-19 test results
within 36 hours prior to embarkation at the intended port. Sellers shall exercise reasonable
efforts to obtain Charterers consent
.

After embarkation, the Buyers representatives will strictly adhere to the Vessels health and
safety protocols relating to Covid-19 at all times, which shall include but not be limited to
submitting daily temperature readings and wearing face masks, and if requested by the master,
to immediately self-isolate should they show symptoms or signs of infection. Sellers shall exercise reasonable efforts to obtain Charterers consent.

354 These representatives are on board for the purpose of familiarisation and in the capacity of
355 observers only, and they shall not interfere in any respect with the operation of the Vessel. The
356 Buyers and the Buyers’ representatives shall sign the Sellers and Charterers’ P&I Club’s standard
letter of
357 indemnity prior to their embarkation and at all times adhere to the lawful the Vessel’s Master.

Any off hire due to the Buyers’ representatives to be for Buyers account.

The Buyers shall also reimburse the Sellers at cost for any other costs/expenses incurred as a result of the Buyers representative’s embarkation, as evidenced by supporting documentation.

358 16. Law and Arbitration
359 (a) This Agreement shall be governed by and construed in accordance with English law and
360 any dispute arising out of or in connection with this Agreement shall be referred to arbitration in
361 London in accordance with the Arbitration Act 1996 or any statutory modification or re-
362 enactment thereof save to the extent necessary to give effect to the provisions of this Clause.

363 The arbitration shall be conducted in accordance with the London Maritime Arbitrators
364 Association (LMAA) Terms current at the time when the arbitration proceedings are
365 commenced.
366 The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall
367 appoint its arbitrator and send notice of such appointment in writing to the other party requiring
368 the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and
369 stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own
370 arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the
371 other party does not appoint its own arbitrator and give notice that it has done so within the
372 fourteen (14) days specified, the party referring a dispute to arbitration may, without the
373 requirement of any further prior notice to the other party, appoint its arbitrator as solerbitrator
374 and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on
375 both Parties as if the sole arbitrator had been appointed by agreement.
376 In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the
377 arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at
378 the time when the arbitration proceedings are commenced.
379 (b) *This Agreement shall be governed by and construed in accordance with Title 9 of the
380 United States Code and the substantive law (not including the choice of law rules) of the State
381 of New York and any dispute arising out of or in connection with this Agreement shall be
382 referred to three (3) persons at New York, one to be appointed by each of the parties hereto,
383 and the third by the two so chosen; their decision or that of any two of them shall be final, and
384 for the purposes of enforcing any award, judgment may be entered on an award by any court of
385 competent jurisdiction. The proceedings shall be conducted in accordance with the rules of the
386 Society of Maritime Arbitrators, Inc.
387 In cases where neither the claim nor any counterclaim exceeds the sum of US$ 100,000 the
388 arbitration shall be conducted in accordance with the Shortened Arbitration Procedure of the
389 Society of Maritime Arbitrators, Inc.
390 (c) This Agreement shall be governed by and construed in accordance with the laws of
391 (state place) and any dispute arising out of or in connection with this Agreement shall be
392 referred to arbitration at                        (state place), subject to the procedures applicable there.
393 *16(a), 16(b) and 16(c) are alternatives; .delete whichever is not applicable. In the absence of
394 deletions, alternative 16(a) shall apply.
395 17. Notices
396 All notices to be provided under this Agreement shall be in writing.
397 Contact details for recipients of notices are as follows:
398 For the’ Buyers: via the brokers
399 For the Sellers: via the brokers
400 18. Entire Agreement
401 The written terms of this Agreement comprise the entire agreement between the Buyers and
402 the Sellers in relation to the sale and purchase of the Vessel and supersede all previous
403 agreements whether oral or written between the Parties in relation thereto.
404 Each of the Parties acknowledges that in entering into this Agreement it has not relied on and
405 shall have no right or remedy in respect of any statement, representation, assurance or
406 warranty (whether or not made negligently) other than as is expressly set out in this Agreement.
407 Any terms implied into this Agreement by any applicable statute or law are hereby excluded to
408 the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude
409 any liability for fraud.

19. Novation of the Time Charter

The Vessel to be delivered with balance of her Time Charter. A Tripartite Novation Agreement to be
mutually agreed and signed by Buyers, Sellers and Charterers once the Deposit has been lodged
pursuant to Clause 2.

No changes or addenda to the Time Charter shall be negotiated or agreed between Sellers and
Charterers without Buyers written prior approval (which not be unreasonably withheld, delayed or conditioned).

Notwithstanding the above, in case no mutual agreement on the Tripartite Novation Agreement
can be made with reasonable effort by 1st July 2021, Vessel to be delivered at the end of the Time
Charter and Vessel’s laycan to be amended accordingly with effect that the Cancelling date shall be automatically extended to fall thirty (30) days from the date the Vessel is redelivered by Charterers to Sellers under the terms of the Time Charter.

The Charterers will be informed of the sale of the Vessel and intention to novate the
Time-Charter only once the Deposit has been lodged with the Escrow Agent pursuant to Clause 2.
(Deposit).

Furthermore, the Buyers hereby agree and undertake to the Sellers that, prior to the Deposit
being lodged, they shall not (whether directly or through brokers) make any attempts to directly
contact/communicate with the Charterers in relation to this’ Agreement, or the transactions
contemplated herein, at any time. Once the Deposit has been lodged, the Buyers may communicate
with Charterers in relation to the Time-Charter novation.

20.       Sanction

The Sellers and the Buyers represent and warrant to each other as of the date hereof and at the
date of delivery that none of them, nor any of their shareholders, are a person or entity
listed or targeted by any sanctions issued by the United Nations, the United States, the United Kingdom,
Switzerland or the European Union (“Sanctions’’) or owned or controlled by any of the foregoing
(“Restricted Person’’).

The Sellers further represent and warrant as of the date hereof and at the date of delivery that the
Vessel is not a Restricted Person and has not engaged in any activity or trade restricted under
Sanctions or that might lead the Vessel to become a Restricted Person.

If at any time before delivery there is a breach of any representation contained under paragraph 1
or 2, the non-breaching party may terminate this Agreement by giving written notice to the other
party.

21.       Confidentiality

The negotiations and the terms and conditions of this Agreement shall be kept strictly private and
confidential between Buyers and Sellers and not details of this sale shall be disclosed to any third
party except/or any public announcements or regulatory filings required and/or in accordance with
NASDAQ/SEC filings. A breach of this confidentiality clause shall, however, not entitle any of the
Parties to terminate this Agreement.

22.       Counterpart

This Agreement may be executed in counterparts in two originals, each of which when executed
and delivered shall constitute an original of this Agreement. No counterpart shall be effective
until each Party has executed at least on counterpart. A signed copy received in pdf formal shall
be deemed to be an original.

Annex I : recap and base Time Charter or a draft of the Time Charter attached hereto form an integral part of this Agreement.

 

For and on behalf of the Sellers For and of behalf of the Buyers
[*****] [*****]
Name: [*****] Name: [*****]
Title: Authorized Signatory Title: Authorized Signatory

 

For and on behalf of [*****]  
[*****]
Name:
[*****]
Title: Director
 

 

This Charter Party is a computer generated copy of the “SALEFORM 2012” form) printed by .authority of Norwegian Shipbrokers’ Association using software which is the copyright of SDSD. Any insertion or deletion to, the form must be dearly visible. In the event of any modification made to the preprinted text of this document which is not dearly visible, the text of the original approved document shall apply. Norwegian Shipbrokers’ Association and SDSD assume no responsibility for any loss or damage caused as a result of discrepancies between the original approved document and this document

 

Exhibit 4.19

 

Certain identified information has been excluded from this exhibit because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential. [*****] indicates that information has been redacted.

  

     

Norwegian Shipbrokers’ Association’s Memorandum of Agreement for sale and purchase of ships. Adopted by BIMCO in 1956.

Code-name

SALEFORM 2012

Revised 1966, 1983 and 1986/87, 1993 and 2012

 

MEMORANDUM OF AGREEMENT

1. Dated: 7th April 2021
2. Atrotos Container Carrier S.A. of Trust Company Complex, Ajeltake Road, Ajeltake Islands, Majuro, Marshall Islands (Name of sellers), hereinafter called the “Sellers”, have agreed to sell and
3. [*****] whose performance hereunder is hereby irrecoverably and unconditionally guaranteed, as primary obligor and note merely as surety, by [*****] (Name of buyers), hereinafter called the “Buyers”, have agreed to buy:
4. Name of vessel: m/v CMA CGM Magdalena – (ex Anaxagoras)
5. IMO Number: 9724049
6. Classification Society: Lloyd’s Register
7. Class Notation: +100A1 CONTAINER SHIP, SHIPRIGHT (SDA, FDA PLUS(25, WW), CM, ACS(B)), *IWS, LI, ECO(BWT, EEDI, IHM), BOXMAX(V,W). +LMC, UMS, NAVI Descriptive Notes SHIPRIGHT SERS, SHIPRIGHT BWMP(T), SHIPRIGHT SCM
8. Year of Build: 2016 ___ Builder/Yard: Daewoo-Mangalia, Romania
9. Flag: Malta Place of Registration: La Valetta GT/NT: 96424/59714
10. hereinafter called the “Vessel”, on the following terms and conditions:
11. Definitions
12. “Banking Days” are days on which banks are open both in the country of the current stipulated for
13. the Purchase Price in Clause 1 (Purchase Price) and in the place of closing stipulated in Clause 8
14. (Documentation), London, Hamburg, Liberia, Malta, Portugal and Geneva. (add additional jurisdictions as appropriate).
15. “Buyers’ Nominated Flag State” means Madeira (state flag state).
16. “Class” means the class notation referred to above.
17. “Classification Society” means the Society referred to above.
18. “Deposit” shall have the meaning given in Clause 2 (Deposit)
19. “Escrow Agent” means a UK law firm with its London or any Far East office nominated by Sellers, who shall hold the Deposit (and if requested by the Sellers the Balance Funds) in the names of the Parties, and

who shall release same in accordance with and pursuant to the terms of an escrow agreement to be entered into between themselves (acting as escrow agent), the Sellers and the Buyers (the “Escrow Agreement”). The Parties agree that HFW, WFW, Hill Dickinson and Ince & Co are deemed acceptable.

“Deposit Holder” means (state name and location of Deposit Holder) or, if left blank, the

20. Sellers’ Bank, which shall hold and release the Deposit in accordance with this Agreement.

“First MOA” means the memorandum of agreement to be entered between Sellers as buyer and HAI KUO SHIPPING 1988C LIMITED, of Level 54, Hopewell Centre, 183 Queen’s Road East, Hong Kong (registered owner) being the current registered owner of the Vessel (the “First Sellers”) as seller.

“First PoDA” means the protocol of delivery and acceptance for the Vessel under the First MOA.

21. “In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, a
22. registered letter, e-mail or telefax.

“MOA PoDA” means the protocol of delivery and acceptance for the Vessel between the Sellers and the Buyers as per Clause 8.

23. “Parties” means the Sellers and the Buyers
24. “Purchase Price” means the price for the Vessel as stated in Clause 1 (Purchase Price).
25. “Sellers’ Account” means the account or accounts to be notified by the Sellers to the Buyers for receipt of the Purchase Price. (state details of bank account) at the Sellers’ Bank.
26. “Sellers’ Bank” means the bank or banks to be (state name of bank, branch and details) or, if left blank, the bank
27. notified by the Sellers to the Buyers for receipt of the balance of the Purchase Price.

28. 1. Purchase Price
29. The Purchase Price is US$ 99,000,000.- (United States Dollars ninety nine million) (state currency and amount both in words and figures).
30. 2. Deposit
31. As security for the correct fulfilment of this Agreement the Buyers shall lodge a deposit of
32. % ( per cent) or, if left blank, 10% (ten per cent), of the Purchase Price (the
33. “Deposit”) in an interest bearing account for the parties with the Escrow Agent Deposit Holder within three (3)
34. Banking Days after that date:
35. (i) this Agreement has been signed by the Parties and exchanged in original or by e-mail or
36. telefax; and

(ii) the Escrow Agreement has been signed by the Parties and the Escrow Agent and exchanged by e-mail or telefax; and

37. (iii) the Escrow Agent Deposit Holder has confirmed in writing to the Parties that the account

has been

38. opened.
39. The Deposit shall be released in accordance with joint written instructions of the Parties.
40. Interest, if any, shall be credited to the Buyers. Any fee charged for holding and releasing the
41. Deposit shall be borne equally by the Parties. The Parties shall provide to the Escrow Agent

Deposit Holder

42. all necessary documentation to open and maintain the account without delay.
43. 3. Payment

(A) At the time of delivery of the Vessel to the Buyers under this Agreement (which shall occur immediately after the delivery of the Vessel by the First Sellers to the Sellers as buyers under the First MOA) but not later than three (3) Banking Days after the date that Notice of Readiness has been given in accordance with Clause 5 (time and Place of delivery and notes):

(i) the Deposit shall be released to the Sellers; and

(ii) the balance of the Purchase Price and all other sums payable on delivery by the Buyers to the Sellers under this Agreement (the “Balance Funds”) shall be paid or released (as the case may be) in accordance with the provisions of Clause 3.

(B) All amounts due and payable by the Buyers under this Agreement shall be paid free of bank charges,

(C) Two (2) Banking Days prior to the anticipated delivery date of the Vessel (as notified in writing by Sellers to the Buyers in accordance with Clause 5 (Notices, time and place of delivery), the Buyers shall lodge an amount equivalent to the Balance Funds (which shall remain at the orders of the Buyers or its financiers until delivery) at Sellers’ option as per below alternatives not later than 5 (5) Banking Days prior to delivery:

(i) Option A: by way of one conditional payment order MT199 bank transfer (“MT199”) to be held to the Buyers’ (or their financiers) order:

(a) to the bank or an escrow agent related to the First Sellers any part of the Balance Funds due to the First Sellers under the First MOA (the “First MOA Payment”), with an instruction that the amount so remitted shall be payable and released to the First Sellers only against presentation by the First Sellers to their bank or escrow agent of (i) a pdf/copy of the timed and dated First PoDA and (ii) a pdf/copy of the timed and dated MOA PoDA duly executed by the authorized signatories of the Sellers and the Buyers, as identified in the MT199 and any release instructions as may be required to an escrow agent; and

(b) any part of the Balance Funds not remitted as (a) above to the bank or an escrow agent of the First Sellers and to be paid to the Sellers under this Agreement as may be adjusted in accordance with this Agreement (the “Sellers’ Portion”) in an escrow account held with the Escrow Agent in accordance with and pursuant to the Escrow Agreement to be held in the sole name of the Buyers and to be released in favour of the Sellers to Sellers’ Account and remitted by the Escrow Agent on closing to the Sellers to Sellers’ Account (together with the Deposit) ,

The MT1199 shall provide that if the pre-positioned funds are not released within the period of five (5) Banking Days from the date of receipt by the First Sellers bank the funds shall immediately be returned to the Buyers. Interest (if any) accrued shall be for the Buyers’ account.

(ii) Option B: in an escrow account held with an Escrow Agent in accordance with and pursuant to the Escrow Agreement to be held in the sole name and order of the Buyers and to be released in favour of the Sellers to Sellers’ Account as regards to the Sellers’ Portion (together with the Deposit) and to Sellers’ order in favour of the First Sellers and remitted by the Escrow Agent upon delivery of the Vessel.

(D) Any cost related to the payment under this Clause 3 (irrespective of whether Option 1 or 2 is selected) shall be shared equally between the Buyers and Sellers.

44. On delivery of the Vessel, but not later than three (3) Banking Days after the date that Notice of
45. Readiness has been given in accordance with Clause 5 (Time and place of delivery and

 

46. notices):
47. (i) the Deposit shall be released to the Sellers; and
48. (ii) the balance of the Purchase Price and all other sums payable on delivery by the Buyers
49. to the Sellers under this Agreement shall be paid in full free of bank charges to the
50. Sellers’ Account.
51. 4. Inspection
52. (a)*The Buyers have inspected and accepted the Vessel’s classification records. The Buyers have waived their right to inspect the Vessel and have
53. Have also inspected the Vessel at/in (state place) on (state date) and have
54. accepted the Vessel following this inspection and therefore the sale is outright and definite subject only
55. to the terms and conditions of this Agreement.
56. (b) *The Buyers shall have the right to inspect the Vessel’s classification records and decloare
57. Whether same are accepted or not within (state date/period)
58. The Sellers shall make the Vessel available for inspection at/in (state place/range) within
59. (state date/period)
60. The Buyers shall undertake the inspection without undue delay to the Vessel. Should the
61. Buyers cause undue delay they shall compensate the Sellers for the losses thereby incurred.
62. The Buyers shall inspect the Vessel without opening up and without cost to the Sellers.
63. During the inspection, the Vessel's deck and engine log books shall be made available for
64. examination by the Buyers.
65. The sale shall become 01:Jtright and definite, Subject only to the terms and conditions of this
66. Agreement, provided that the Sellers receive written notice of acceptance of the Vessel from
67. the Buyers within seventy two (72) hours after completion of such inspection or after the
68. Date/last day of the period stated in Line 59, whichever is earlier.
69. Should the Buyers fail to undertake the inspection as scheduled and/or notice of acceptance of the
70. Vessel's classification records and/or of the Vessel not be received by the Sellers as
71. aforesaid, the Deposit together with interest earned, if any, shall be released immediately, to the
72. Buyers, whereafter this Agreement shall be null and void.
73. *4(a) and 4(b) are alternatives; delete whichever is not applicable. In the absence of deletions,
74. alternative 4(a) shall apply.
75. 5. Time and place of delivery and notices
76. (a) The Vessel shall be delivered and taken over safely afloat 􀂍􀂍t)i safe·and accessible berth or
77. anchorage at/in within the trading area under the existing ch9rter back to back I upon expiry

of the charter (state place/range) in the Sellers' option.

78. Notice of Readiness shall not be tendered before: 1st May 2021 (date).
79. Cancelling Date (see Clauses 5(c), 6(a)(i), 6(a)(iii) and 14): 15 June 2021

(i)       Subject always to subparagraph (ii), if at any time prior to tendering Notice of Readiness for delivery the position at the intended place '6f deli-very has changed such that the Sellers would not be able to comply with their obligations , under this Agreement were the Vessel to be delivered at such place due to Covid 19 local restrictions, the Sellers shall be entitled to nominate another place of delivery within the range specified in Clause 5 of this Agreement [where the Buyers are able to embark their crew] acceptable to Buyers whose acceptance shall be given within one (1) Banking Day and shall not be unreasonably withheld or conditioned and which shall have due regard to mitigating additional costs for the Sellers and minimising disruption to the Charterer's service and use of the Vessel ("Alternative Place of Delivery”). In such event, the Cancelling Date shall be extended by the time taken to agree on Alternative Place of Delivery and for the Vessel to move from her location at the time of the new nomination until she arrives at the Alternative Place of Delivery.

(ii)        Notwithstanding anything to the contrary in sub-paragraph (i) above, in the event that either the Sellers or the Vessel at the place of delivery (whether it be the original intended place of delivery or the Alternative Place of Delivery) are subject to a quarantine (but thereafter can perform / comply with their obligations under this Agreement) then the Sellers shall have the option -of delivering the Vessel at such place after the expiry of the relevant quarantine period and the, Cancelling Date shall be extended by such period.

Any additional expenses, including but not limited to additional bunkers consumed, harbour dues, screening, cleaning, fumigating and/or quarantining the Vessel and its crew (together the "'Relocation Expenses') arising directly or indirectly from a delay in the performance of the obligations of either party under this Agreement as a result of delays/restrictions/measures arising due to Covid-19 or proceeding to an Alternative Place of Delivery instead of the place of delivery originally nominated in accordance with Clause 5 shall be shared on a 50/50 basis, against presentation of reasonable supporting documentation Payment under this Clause shall be made at the same time and place and in the same currency as the Purchase Price.

In the event that it is not possible to deliver the Vessel within the range of delivery places set out in Clause 5( a) of this Agreement, the Sellers and the Buyers shall use their best endeavours, acting in good faith, to find another place at which delivery can be given and the Buyers shall not be entitled to exercise any right of cancellation under this Agreement until such time as it is clear that no agreement can be reached.

80. (b) The Sellers shall keep the Buyers well informed of the Vessel's itinerary and shall
81. provide the Buyers with thirty (30), twenty (20), ten (10), five (5) and three (3) days' approximate

notice and one (1) day definite notice of the date the

82. Sellers intend to tender Notice of Readiness and of the intended place of delivery.
83. When the Vessel is at the place of delivery and physically ready for delivery in accordance with this
84. Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.
85. (c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the
86. Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing
87. stating the date when they anticipate that the Vessel will be ready for delivery and proposing a
88. new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of
89. either cancelling this Agreement in accordance with Clause 14 (Sellers' Default) within one (1)

three (3).

90. Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date.
91. If the Buyers have not declared their option within one (1) three (3) Banking Days of receipt of the
92. Sellers' notification or if the Buyers accept the new date, the date proposed in the Sellers'
93. notification shall be deemed to be the new Cancelling Date and shall be substituted for the
94. Cancelling Date stipulated in line 79.
95. If this Agreement is maintained with the new Cancelling Date' all other terms and conditions
96. hereof including those contained in Clauses 5(b) and 5(d) shall remain unaltered and in full
97. force and effect.
98. (d) Cancellation, failure to cancel or acceptance of, the new Cancelling Date shall be entirely
99. without prejudice to any claim for damages the. Buyers may have under Clause 14 (Sellers' Default)

100. for the Vessel not being ready by the original Cancelling Date.
101. (e) Should the Vessel become an actual, constructive or compromised total loss before delivery
102. the Deposit together with interest earned, if'--any, shall be released immediately to the Buyers
103. whereafter this Agreement shall be null and void.
104. 6. Divers Inspection / Drydocking
105. (a)*
106. (i) The Buyers herewith declare shall have the option at their cost and expense to arrange for an

underwater

107. inspection by a diver approved by the Classification Society prior to the delivery of the
108. Vessel. The_ underwater inspection may take place at a port/place prior to arrival at the

place of delivery and shall be organised and arranged by the Sellers and paid for by the

Buyers (in such event, the Sellers shall provide the Buyers on delivery with a letter of

undertaking that to the best of Sellers knowledge and belief the Vessel has not touched

bottom or grounded from the time of said inspection until delivery). Such option shall be

declared latest nine (9) days prior to the Vessel’s intended

109. date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this
110. Agreement. The Sellers shall at their cost and expense make the Vessel available for
111. such inspection. This inspection shall be carried out without undue delay and in the
112. presence of a Classification Society surveyor arranged for by the Sellers and paid for by
113. the Buyers at the time of closing. The Buyers' representative) shall have the right to be

present at the diver's

114. inspection as observer(s) only without interfering with the work or decisions of the
115. Classification Society surveyor. The extent of the inspection and the conditions under
116. which it is performed shall be to the satisfaction of the Classification Society. If the
117. underwater inspection is scheduled for the place of delivery but the conditions at the

place of delivery are unsuitable for such inspection (other than for any reason set out in

Clause 5(b), in which case the provisons of Clause 5 (b) will apply), the Sellers shall at

118. their cost and expense make the Vessel available at a suitable alternative place near to
119. the delivery port, in which event the Cancelling Date shall be extended by the additional
120. time required for such positioning and the subsequent re-positioning unless otherwise

mutually agreed. The Sellers may

121. not tender Notice of Readiness prior to completion of the underwater inspection.
122. (ii) If the rudder, propeller, bottom or other underwater parts below the deepest load line are
123. found broken, damaged or defective so as to affect the Vessel's class, then (1) unless
124. repairs can be carried out afloat to the satisfaction of the Classification, Society,
125. the Sellers shall arrange for the Vessel to be drydocked at their expense for inspection
126. by the Classification Society of the Vessel's underwater parts below the deepest load line,
127. the extent of the inspection being in accordance with the Classification Society's rules (2)
128. such defects shall be made good by the Sellers at their cost and expense to the
129. satisfaction of the Classification Society without condition/recommendation** and (3) the
130. Sellers shall pay for the underwater inspection and the Classification Society's
131. attendance.
132. Notwithstanding anything to the contrary in this Agreement, if the Classification Society
133. do not require the aforementioned defects to be rectified before the next class
134. drydocking survey, the Sellers shall be entitled to deliver the Vessel with these defects
135. against a deduction from the Purchase Price of the estimated direct cost (of labour and
136. materials) of carrying out the repairs to the satisfaction of the Classification Society,
137. whereafter the Buyers shall have no further rights whatsoever in respect of the defects
138. and/or repairs. The estimated direct cost of the repairs shall be the average of quotes for
139. the repair work obtained from two reputable independent shipyards in the People's at or in

the vicinity of

140. the port of delivery Republic of China, one to be obtained by each of the·Parties within two

(2) three (3) Banking

141. Days from the date of the imposition of the condition/recommendation, unless the Parties
142. agree otherwise. Should either of the Parties fail to obtain ':such a quote within the
143. stipulated time then the quote duly obtained by the other Party shall be the sole basis for
144. the estimate of the direct repair costs. The Sellers shall may not re-tender Notice of

Readiness upon

145. such estimate having been established.

Notwithstanding anything to the contrary in this Agreement, the Cancelling Date shall be automatically extended for the time required to either i) agree the deduction from the Purchase Price as set out above, Qr ii) for the repairs to be carried out afloat pursuant to 6 (a) (ii), if such delay(s) in reaching an agreement on the deduction of the Purchase Price or performing repairs to the Vessel afloat would lead to the Vessel. missing its Cancelling Date.

146. (iii) If the Vessel is to be drydocked pursuant to Clause 6(a) (ii) and no suitable dry-docking
147. facilities are available at the port of delivery, the Sellers shall take the Vessel to a port
148. where suitable drydocking facilities are available, whether within or outside the delivery
149. range as per Clause 5(a). Once drydocking has taken place the Sellers shall deliver the
150. Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose
151. of this Clause, become the new port of delivery. In such event the Cancelling Date shall
152. be extended by the additional time required for the drydocking and extra steaming, but
153. Limited to a maximum of forty-five (45) fourteen (14) days.
154. (b) *The Sellers shall place the Vessel in drydock at the port of delivery for inspection by the
155. Classification Society of the Vessel's underwater parts below the deepest load line, the extent
156. of. the inspection being in accordance with the Classification Society's rules. If the rudder,
157. propeller, bottom or other underwater parts below the deepest load line are found broken,
158. damaged or defective so as to affect the Vessel's class, such defects shall be made good at the
159. Sellers' cost and expense to the satisfaction of the Classification Society without
160. Condition/recommendation**. In such event the Sellers are also to pay for the costs and
161. expenses in connection with putting the Vessel in and taking her out of drydock, including the
162. drydock dues and the Classification Society's fees. The Sellers shall also pay for these costs
163. and expenses if parts of the tailshaft system are condemned or found defective or broken so as
164. to affect the Vessel's class. In all other cases, the Buyers shall pay the aforesaid costs and
165. expenses, dues and fees.
166. (c) If the vessel is drydocked pursuant to Clause 6(a)(ii) or 6(b) above:
167. (i) The Classification Society may require survey of the tailshaft system, the extent of the
168. survey being to the satisfaction of the Classification Society surveyor. If such survey is
169. not required by the Classification Society, the Buyers shall have the option to require the
170. tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey
171. being in accordance with the Classification Society's rules for tailshaft survey and
172. consistent with the current stage of the Vessel's survey cycle. The Buyers shall declare
173. whether they require the tailshaft to be drawn and surveyed not later than by the
174. completion of the inspection by the Classification Society. The drawing and refitting of
175. the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be
176. condemned or found defective so as to affect the Vessel's class, those parts shall be
177. renewed or made good at the Sellers' cost and expense to the satisfaction of the
178. Classification Society without condition/recommendation**.
179. (ii) The costs and expenses relating to the survey of the tailshaft system . shall be borne by
180. the Buyers unless the Classification Society requires such survey to be carried out or if
181. parts of the system are condemned or found defective or broken so as to affect the
182. Vessel's class, in which case the Sellers shall pay these costs and expenses.

183. (iii) The Buyers' representative(s) shall have the right to be present in the drydock, as
184. observer(s) only without interfering with the work or decisions of the Classification
185. Society surveyor.
186. (iv) The Buyers shall have the right to have the underwater parts of the Vessel cleaned
187. and painted at their risk, cost and expense without interfering with the Sellers' or the
188. Classification Society surveyor's work, if any, and without affecting the Vessel's timely
189. delivery. If, however, the Buyers' work in drydock is still in progress when the
190. Sellers have completed the work which the Sellers are required to do, the additional
191. docking time needed to complete the Buyers' work shall be for the Buyers' risk, cost and
192. expense. In the event that the Buyers' work requires such additional time, the Sellers
193. may upon completion of the Sellers' work tender Notice of Readiness for delivery whilst
194. the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be
195. obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in
196. drydock or not.
197. *6(a) and 6(b) are alternatives; delete whichever is not applicable. In the absence of deletions,
198. alternative 6(a) shall apply.
199. ** Notes or memoranda, if any, in the surveyor’s report which are accepted by the Classification
200. Society without condition/recommendation are not to be taken into account.
201. 7. Spares, bunkers and other items
202. The Sellers shall deliver the Vessel to the Buyers with everything belonging to her and on board
203. and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or
204. spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspection this

Agreement

205. used or unused, whether on board or not shall become the Buyers' property, but spares on
206. order are excluded. Forwarding charges, if any, shall be for the Buyers' account. The Sellers
207. are not required to replace spare parts including spare tail-end shaft(s) and spare
208. propeller(s}/propeller blade(s) which are taken out of spare and used as replacement prior to
209. delivery, but the replaced items shall be the property of the Buyers. Unused stores and
210. provisions shall be included in the sale and be taken over by the Buyers without extra payment.
211. Library and forms exclusively for use in the Sellers' vessel(s) and captain's, officers' and crew's
212. personal belongings including the slop chest are excluded from the sale without compensation,
213. as well as the following additional items: (include list)
214. Items on board which are on hire or owned by third parties, listed as follows, are excluded from
215. the sale without compensation: (include list)
̶ ECDIS (electronic charts), and /SF Watchkeeper software program
̶ NAVTOR NAVBOX and 2 NAVSTICKS, Power Supply and Octocoupler
̶ VIKING LIFE RAFTS 4xl 6 Persons and 2x6 Persons
̶ Refillable cylinders (Ox, Ac, Freon)
̶ FX60 Antenna & SC SIGMA Xtreme Rack 1 FBB Antenna and BDU (VSAT Backup) Fleet phone (Antipiracy)
̶ Server.Hard Disk drives
̶ NAS device
̶ All laptop & hard drives
̶ Chris hired items: reefer spare kits
216. Items on board at the time of inspection which are on hire or owned by third parties, not listed
217. above, shall be replaced or procured by the Sellers prior to delivery at their cost and expense.

218. The Buyers shall take over remaining bunkers and unused lubricating and hydraulic oils and
219. greases in storage tanks and unopened drums and pay either:
220. (a) *the actual net price (excluding barging expenses) as evidenced by invoices or vouchers;-or
221. (b) *the current net market price (excluding barging expenses) at the port and date of delivery
222. of the Vessel or, if unavailable, at the nearest bunkering port,
223. for the quantities taken over.

The quantities of bunkers and unused Lu boils remaining on bpard $hall be measured jointly by

the Sellers and the Buyers representatives on board one (l)·Banking Day prior to the expected

date of delivery with an allowance for consumption to be calculated until the expected time of

physical delivery. The allowance to be adjusted in case of a later then calculated delivery.

224. Payment under this Clause shall be made at the same time and place and in the same
225. currency as the Purchase Price.
226. "inspection" in this Clause 7, shall mean the Buyers' inspection according to Clause 4. (a) or (b)
227. (Inspection), if applicable. If the Vessel is taken over without inspection, the date of this
228. Agreement shall be the relevant date.
229. *(a) and (b) are alternatives, delete whichever is not applicable. In the absence of deletions
230. Alternative (a) shall apply.
231. 8. Documentation
232. The place of closing: e-closing
233. (a) In exchange for payment of the Purchase Price the Sellers shall provide the Buyers with the
234. following delivery documents: to be mutually agreed and which shall comply with the Buyers'

Nominated Flag State and registry and to form part of an addendum to this Agreement.

235. (i) Legal Bill(s) of Sale in a form recordable in the Buyers' Nominated Flag State,
236. transferring title of the Vessel and stating that the Vessel is free from all mortgages,
237. encumbrances and maritime liens or any other debts whatsoever, duly notarially attested
238. and legalised orapostilled, as required by the Buyers' Nominated Flag State;
239. (ii) Evidence that all necessary corporate, shareholder and other action has been taken by
240. the Sellers to authorise the execution, delivery and performance of this Agreement;
241. (iii) Power of Attorney of the Sellers appointing one or more representatives to act on behalf
242. of the Sellers in the performance of this Agreement, duly notarially attested and legalised
243. or apostilled (as appropriate);
244. (iv) Certificate or Transcript of Registry issued by the competent authorities of the flag state
245. on the date of delivery evidencing the Sellers' ownership of the Vessel and that the
246. Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by
247. such authority to the closing meeting with the original to be sent to the Buyers as soon as
248. possible after delivery of the Vessel;
249. (v) Declaration of Class or (depending on the Classification Society) a Class Maintenance
250. Certificate issued within three (3) Banking Days prior to delivery confirming that the
251. Vessel is in Class free of condition/recommendation;
252. (vi) Certificate of Deletion of the Vessel from the Vessel's registry or other official evidence of
253. deletion appropriate to the Vessel's registry at the time of delivery, or, in the event that
254. the registry does not as a matter of practice issue such documentation immediately, a

255. written undertaking from the Sellers to effect deletion from the Vessel's registry forthwith
256. and provide a certificate or other official evidence of deletion to the Buyers promptly and
257. latest within four (4) weeks after the Purchase Price has been paid and the Vessel has
258. been delivered;
259. (vii) A copy of the Vessel's Continuous Synopsis Record certifying the date on which the
260. Vessel ceases to be registered with the Vessel's registry, or, in the event that the registry
261. does not as a matter of practice issue such certificate immediately, a written undertaking
262. from the Sellers to provide the copy of this certificate promptly upon it being issued
263. together with evidence of submission by the Sellers of a duly executed Form 2 stating
264. the date on which tl=le Vessel shall cease to be registered with the Vessel’s registry;
265. (viii)Commercial Invoice for the Vessel;
266. (ix) Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases;
267. (x) A, copy of the Sellers' letter to their satellite communication provider cancelling the
268. Vessel's communications contract which is to be sent immediately after delivery of the
269. Vessel;
270. (xi) Any additional documents as may reasonably be required by the competent authorities of
271. the Buyers' Nominated Flag State for the purpose of registering the Vessel, provided the
272. Buyers notify the Sellers of any such documents as soon as possible after the date of
273. this Agreement; and
274. (xii) The Sellers' letter of confirmation that to the best of their knowledge, the Vessel is not
275. black listed by any nation or international organisation.
276. (b) At the time of delivery the Buyer shall provide the Sellers with delivery documents to be

mutually agreed and to form part of an addendum to this Agreement.

277. (i) Evidence that all necessary corporate, shareholder and other action has been taken by
278. the Buyers to authorise the execution, delivery and performance of this Agreement; and
279. (ii) Power of Attorney of the Buyers appointing one or more representatives to act on behalf
280. of the Buyer in the performance of this Agreement, duly notarially attested and legalised
281. or apostilled (as appropriate).
282. (c) If any of the documents listed in the Addendum Sub-clauses (a) and (b) above are not in the

English

283. language they shall be accompanied by an English translation by an authorised translator or
284. certified by a lawyer qualified to practice in the country of the translated language.
285. (d) The Parties shall to the extent possible exchange copies, drafts or samples of the
286. documents listed in the Addendum Sub clause (a) and Sub-clause (b) above for review and

comment-by the

287. other party not later than seven (7) (state number of days), or if left blank, nine (9) days prior to
288. the Vessel's intended date of readiness for delivery as notified by the Sellers pursuant to
289. Clause 5(b) of this Agreement.
290. (e) Concurrent with the exchange of documents in the Addendum Sub-clause (a) and Sub clause

(b) above.

291. the Sellers shall also hand to the Buyers the classification certificate(s) as well as all plans,
292. drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel. Other
293. certificates which are on board the Vessel shall also be handed over to the Buyers unless the
294. Sellers are required to retain same, in which case the Buyers have the right to take copies.

295. (f) Other technical documentation which may be in the Sellers' possession shall promptly after
296. delivery be forwarded to the Buyers at their expense, if they so request. The Sellers may keep
297. the Vessel's log books but the Buyers have the right to take copies of same.
298. (g) The Parties shall sign and deliver to each other a Protocol of Delivery and Acceptance
299. confirming the date and time of delivery of the Vessel from the Sellers to the Buyers.
300. 9. Encumbrances
301. The Sellers warrant that the Vessel, at the time of delivery, is free from all charters,
302. encumbrances, mortgages and maritime liens or any other debts whatsoever, and is not subject
303. to Port State or other administrative detentions. The Sellers hereby undertake to indemnify
304. the Buyers against all consequences of claims made against the Vessel which have been incurred
305. prior to the time of delivery.
306. 10. Taxes, fees and expenses
307. Any taxes, fees and expenses in connection with the purchase and registration in the Buyers'
308. Nominated Flag State shall be for the Buyers' account, whereas similar charges in connection
309. with the closing of the Sellers' register shall be for the Sellers' account.
310. 11. Condition on delivery
311. The Vessel with everything belonging to her shall be at the Sellers' risk and expense until she is
312. delivered to the Buyers, but subject to the terms and conditions of this Agreement she shall be
313. delivered and taken over as she was at the date time of inspection this Agreement, fair wear and

tear excepted.

314. However, the Vessel shall be delivered free of cargo and free of stowaways with her Class
315. maintained without condition/recommendation*, free of average damage affecting the Vessel's
316. class, and with her classification certificates and national certificates, as well as all other
317. certificates the Vessel had at the time of inspection, clean, valid and unextended without
318. condition/recommendation* by the Classification Society or the relevant authorities for at least three (3) months after delivery.
319. .

 

320. "inspection" in this Clause 11, shall mean the Buyers' inspection according to Clause 4(a) or
321. 4(b) (Inspection), if applicable. If the Vessel is taken over without inspection, the date of this
322. Agreement shall be the relevant date.
323. *Notes and memoranda, if any, in the Surveyor's report which are accepted by the Classification
324. Society without condition/recommendation are not to be taken into account.
325. 12. Name/markings
326. Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel
327. markings.
328. 13. Buyers' default
329. Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the
330. right to cancel this Agreement, and they shall be entitled to claim compensation for their losses
331. and for all expenses incurred together with interest.
332. Should the Purchase Price not be paid in accordance with Clause 3 (Payment), the Sellers
333. have the right to cancel this Agreement, in which case the Deposit together with interest
334. earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the
335. Sellers shall be entitled to claim further compensation for their losses and for all expenses
336. incurred together with interest.
337. 14. Sellers' default
338. Should the Sellers fail to give Notice of Readiness in accordance with Clause 5(b) or fail to be
339. · ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the

340. · option of cancelling this Agreement. If after Notice of Readiness has been given but before
341. the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not
342. made physically ready again by the Cancelling Date and new Notice of Readiness given, the
343. Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this
344. Agreement, the Deposit together with interest earned, if any, shall be released to them
345. immediately.
346. Should the Sellers fail to give Notice of Readiness by the Cancelling Date or fail to be ready to
347. validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers
348. for their loss and for all expenses together with interest if their failure is due to proven
349. negligence and whether or not the Buyers cancel this Agreement.
350. 15. Buyers' representatives
351. After this Agreement has been signed by the Parties and the Deposit has been lodged, the
352. Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and
353. expense for the last fifteen (15) days prior delivery. The right of the Buyers shall be subject to i)

the charterers consent and ii) Buyers representatives providing negative Covid-19 test results

within 36 hours prior to embarkation at the intended port. Sellers shall exercise reasonable

efforts to obtain Charterers consent.

After embarkation, the Buyers representatives will strictly adhere to the Vessels health and

safety protocols relating to Covid-19 at all times, which shall include but not be limited to

submitting daily temperature readings and wearing face masks, and if requested by the master,

to immediately self-isolate should they show symptoms or signs of infection.

354. These representatives are on board for the purpose of familiarisation and in the capacity of
355. observers only, and they shall not interfere in any respect with the operation of the Vessel. The
356. Buyers and the Buyers' representatives shall sign the Sellers and charterers' P&I Club's standard

letter of

357. indemnity prior to their embarkation and at all times adhere to the lawful the Vessel's Master.

Any off hire due to the Buyers' representatives to be for Buyers account.

The Buyers shall also reimburse the Sellers at cost for any other·costs/expenses incurred as a

result of the Buyers representative's embarkation, as evidenced by supporting documentation.

358. 16. Law and Arbitration
359. (a) This Agreement shall be governed by and construed in accordance with English law and
360. any dispute arising out of or in connection with this Agreement shall be referred to arbitration in
361. London in accordance with the Arbitration Act 1996 or any statutory modification or re-
362. enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
363. The arbitration shall be conducted in accordance with the London Maritime Arbitrators
364. Association (LMAA) Terms current at the time when the arbitration proceedings are
365. commenced.
366. The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall
367. appoint its arbitrator and send notice of such appointment in writing to the other party requiring
368. the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and
369. stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own
370. arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the
371. other party does not appoint its own arbitrator and give notice that it has done so within the
372. fourteen (14) days specified, the party referring a dispute to arbitration may, without the
373. requirement of any further prior notice to the other party, appoint its arbitrator as solerbitrator
374. and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on
375. both Parties as if the sole arbitrator had been appointed by agreement.

 

376. In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the

377. arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at
378. the time when the arbitration proceedings are commenced.
379. (b) *This Agreement shall be governed by and construed in accordance with Title 9 of the
380. United States Code and the substantive law (not including the choice of law rules) of the State
381. of New York and any dispute arising out of or in connection with this Agreement shall be
382. referred to three (3) persons at New York, one to be appointed by each of the parties hereto,
383. and the third by two so chosen; their decision or that of any two of them shall be final, and
384. for the purposes of enforcing any award, judgment may be entered on an award by any court of
385. competent jurisdiction. The proceedings shall be conducted in accordance with the rules of the
386. Society of Maritime Arbitraters, Inc.
387. In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the
388. arbitration shall be conducted in accordance with the Shortened Arbitration Procedure of the
389. Society of Maritime Arbitrators, Inc.
390. (c) This Agreement shall be governed by and construed in accordance with the laws of
391. (state place) and any dispute arising out of or in connection with this Agreement shall be
392. referred to arbitration at (state place), subject to the procedures applicable there.
393. *16(a), 16(b) and 16(c) are alternatives; delete whichever is not applicable. In the absence of
394. deletions, alternative 16(a) shall apply.
395. 17. Notices
396. All notices to be provided under this Agreement shall be in writing.
397. Contact details for recipients of notices are as follows:
398. For the Buyers: via the brokers
399. For the Sellers: via the brokers
400. 18. Entire Agreement
401. The written terms of this Agreement comprise the entire agreement between the Buyers and
402. the Sellers in relation to the sale and purchase of the Vessel and supersede all -previous
403. agreements whether oral or written between the Parties in relation thereto.
404. Each of the Parties acknowledges that in entering into this Agreement n has not relied on
405. and shall have no right or remedy in respect of any statement, representation, assurance or
406. warranty (whether or not made negligently) other than as is expressly set out in this Agreement.
407. Any terms implied into this Agreement by any applicable statute or 1aw are hereby excluded
408. to the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude
409. any liability for fraud.

 

 

19.       Sanction

The Sellers and the Buyers represent and warrant to each other as of the date hereof and at the

date of delivery that none of them, nor any of their shareholders, are a person or entity listed or

targeted by any sanctions issued by the United Nations, the United States, the United Kingdom,

Switzerland or the European Union ("Sanctions'') or owned or controlled by any of the foregoing

("Restricted Person”).

 

The Sellers further represent and warrant as, of the date hereof and at the date of delivery that the

Vessel is not a Restricted Person and has not engaged in any activity or trade restricted under

Sanctions or that might lead the Vessel to become a Restricted Person.

 

If at any time before delivery there is a breach of any representation contained under paragraph 1

or 2, the non-breaching party may terminate this Agreement by giving written notice to the other

party.

 

20.       Confidentiality

The negotiations and the terms and conditions of this Agreement shall be kept strictly private and

Confidential between Buyers and Sellers and not details of this sale shall be disclosed to any third

party except for any public announcements or regulatory filings required and/or in accordance

with NASDAQ/SEC filing. A breach of this confidentiality clause shall, however, not entitle any of

the Parties to terminal this Agreement.

21.        Counterpart

This Agreement may be executed in counterparts in two originals, each of which when executed

and delivered shall constitute an original of this Agreement. No counterpart shall be effective

until each Party has executed at least on counterpart A signed copy received in pdf format shall

be deemed to be an original. and delivered shall constitute an original of this Agreement. No

counterpart shall be effective until each Party has executed at least on counterpart. A signed copy

received in pdf format shall be deemed to be an original.

 

 

For and on behalf of the Sellers

 

[*****]

__________________________

 

Name: [*****]

 

Title: Authorised Signatory

For and on behalf of the Buyers

 

[*****]

__________________________

 

Name: [*****]

 

Title: Authorised Signatory

 

 

 

 

 

 

For and on behalf of [*****]

 

 

 

[*****]
Name:
[*****]

Title: Director

 

 

 

 

 

This Charter Party is a computer generated copy of the “SALEFORM 2012” form printed by authority of Norwegian Shipbrokers' Association using software which is the copyright of SDSD. Any insertion or deletion to the form must be clearly visible. In the event of any modification made to the preprinted text of this document which is not clearly visible, the text of the original approved document shall apply. Norwegian Shipbrokers' Association and SDSD assume no responsibility for any loss or damage caused as a result of discrepancies between the original approved document and this document

 

 

 

 

Exhibit 8.1

LIST OF SIGNIFICANT SUBSIDIARIES

 

         

Name of Subsidiary

  Jurisdiction of Incorporation   Proportion of Ownership Interest
Capital Product Operating L.L.C.   Republic of the Marshall Islands   100%

 

Exhibit 12.1

 

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

 

I, Gerasimos (Jerry) Kalogiratos, certify that:

 

I have reviewed this annual report on Form 20-F of Capital Product Partners L.P.;

 

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

 

The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:

 

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and The company’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

 

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

 

Dated: April 27, 2021

 

By: /s/ Gerasimos (Jerry) Kalogiratos

 

 

Name: Gerasimos (Jerry) Kalogiratos

 

Title: Chief Executive Officer

 

Exhibit 12.2

 

CERTIFICATION OF CHIEF FINANCIAL OFFICER

 

I, Nikolaos Kalapotharakos, certify that:

 

I have reviewed this annual report on Form 20-F of Capital Product Partners L.P.;

 

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

 

The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:

 

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and The company’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

 

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.

 

Dated: April 27, 2021

 

By: /s/ Nikolaos Kalapotharakos

 

 

Name: Nikolaos Kalapotharakos

 

Title: Chief Financial Officer

 

Exhibit 13.1

 

 

Certification Pursuant to

 

18 U.S.C. Section 1350

 

As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

In connection with the annual report on Form 20-F of Capital Product Partners L.P., a master limited partnership organized under the laws of the Republic of the Marshall Islands (the “Company”), for the period ending December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned officer of the Company certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 that: the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated: April 27, 2021

 

By: /s/ Gerasimos (Jerry) Kalogiratos

 

 

Name: Gerasimos (Jerry) Kalogiratos

 

Title: Chief Executive Officer

 

Exhibit 13.2

 

Certification Pursuant to

 

18 U.S.C. Section 1350

 

As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

In connection with the annual report on Form 20-F of Capital Product Partners L.P., a master limited partnership organized under the laws of the Republic of the Marshall Islands (the “Company”), for the period ending December 31, 2020 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned officer of the Company certifies pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 that: the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated: April 27, 2021

 

By: /s/ Nikolaos Kalapotharakos

 

 

Name: Nikolaos Kalapotharakos

 

Title: Chief Financial Officer

 

Exhibit 15.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in Registration Statement No. 333-234318 on Form F-3 of our reports dated April 27, 2021, relating to the consolidated financial statements of Capital Product Partners L.P. (the “Partnership”), and the effectiveness of the Partnership’s internal control over financial reporting, appearing in this Annual Report on Form 20-F for the year ended December 31, 2020.

 

/s/ Deloitte Certified Public Accountants S.A.

 

Athens, Greece

 

April 27, 2021

 



Serious News for Serious Traders! Try StreetInsider.com Premium Free!

You May Also Be Interested In





Related Categories

SEC Filings